
    Marsellus, Pitt and Company, Respondent, v. Thomas Simpson, Doing Business under the Name and Style of R. Simpson and Company, Appellant.
    First Department,
    March 24, 1911.
    Bailment — pledge of property belonging to another — Factors’ Act — agent intrusted with possession of articles for sale.
    A pawnbroker when acting in good faith is protected by the Factors’ Act in making advances on articles which have been intrusted for sale by the owner to the pledgor.
    Where merchants delivered certain jewelry to a retailer on memorandum to show to a' customer, and it appears that the custom in the trade was that the person to whom goods were so delivered had the right to sell them, but was bound to bring back either the goods or the money, and the retailer pledged some of the jewelry with a pawnbroker, who took the same in good faith, it is error to direct a verdict for the merchants in an action of replevin brought against the pawnbroker.
    
      It seems, that there may be a question for the jury as to whether the retailer was intrusted with possession of the goods for the purpose of sale within the meaning of the Factors’ Act.
    Appeal by the defendant, Thomas Simpson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of April, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles Blandy, for the appellant.
    
      Joseph R. Swan, for the respondent.
   Ingraham, P. J.:

This action was brought to recover from the defendant certain personal property that had been delivered by the plaintiff to one J. Edward Boeck on memorandum. Plaintiff was a dealer in jewelry and Boeck was also in the jewelry business. Boeck called on the plaintiff and made a selection of certain jewelry to show to a Mr. Huntoon for sale. He selected the articles that he desired and they were delivered to him, he signing an instrument which recited that the goods were delivered on memorandum; that the goods were to show and were sent to Boeck for his inspection; that they were the property of the plaintiff and were to be returned to it on demand; and then followed a description of the articles of jewelry delivered to him. Boeck subsequently returned all but one of the articles, stating that the one he did not return Mr. Huntoon had. This was on December 11, 1906. Boeck obtained other pieces of jewelry to show to a Mrs. Hearn. There were one diamond ring valued at $850, two pearls valued at $550 and a string of pearls valued at $3,600 which Boeck received from the plaintiff and did not return. Mr. Huntoon testified that he had never instructed Boeck at any time to obtain any of this jewelry for his inspection. ' It was proved that it was the custom in the trade to deliver goods to persons in the trade on memorandum, and the person to whom the goods were delivered had the right to sell the goods, but was bound to bring back the goods delivered or thd money, in which case the sale would be complete. Subsequently, and on the twenty-first day of December, Boeck pledged this ring with the defendant and received from him the sum of $400. On the 28th of January, 1907, Boeck pledged the two pearls with the defendant and received the sum of $175, and on the 2d day of May, 1907, Boeck pledged the necklace with the defendant and received the sum of $1,200. Upon this testimony defendant’s counsel moved to dismiss the complaint upon the ground, among others, that these goods were delivered to Boeck with authority to sell, that the right to sell carried with it a right to pledge, and in that respect the case was governed by the Factors’ Act. This motion was denied and the defendant excepted, whereupon plaintiff moved for the direction of a verdict in its favor, which motion the court granted and directed a verdict for the plaintiff, to which the defendant excepted. The defendant then asked to go to the jury upon the question as to whether Boeck had authority to sell the gems in question at the prices named in the respective memoranda. That motion was denied and defendant excepted, whereupon the jury rendered a verdict in favor of the plaintiff and from the judgment entered thereon the defendant appeals.

This'court held in Schmidt v. Simpson (139 App. Div. 509) that the Factors’ Act (Laws of 1830, chap. 179, $ 3 et seq.; re-enacted in Pers. Prop. Law [Laws of 1909, chap. 45], § 43) did not apply, and, therefore, the defendant was not entitled to the benefit of that act. In the case of Freudenheim, v. Gutter (201 N. Y. 94) the Court of Appeals held that the Factors’ Act did apply and that a pawnbroker when acting in good faith is protected in making advances on articles which had been intrusted by the owner to the party pledging the merchandise for sale. Applying the law as thus established it was error to direct a verdict for the plaintiff and there must be a new trial. It may be that in this case there is a question for the jury as to whether Boeck ever had authority to sell these goods or was intrusted with the possession of the merchandise for the purpose of sale within the Factors’ Act, but if any such question was presented it was for the jury.

It follows, therefore, that the judgment appealed from is reversed, and a new trial ordered, with costs to the appellant to abide the event.

Laughlin, Clarke, Miller and Dowling, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  