
    Citroen et al. v. Adam.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Bailment—Authority of Bailee—Province of Jury.
    In an action to recover personal property intrusted by plaintiffs to a third person to he by her sold to a designated person at a specified price, but which she pledged to defendant, where the evidence will support either of two inferences, that the power of sale was general, or that it was special, it is for the jury to draw the inference, though the facts are undisputed, and plaintiffs testify that they would have accepted the money had their bailee sold to any other than the designated person, and it is error to dismiss the complaint.
    Appeal from circuit court, Hew York county.
    Action by Amalia Citroen and Hathan Kauffmann against Thomas Adam, sued as John Doe and Richard Roe, trading under the firm name of Thomas-Green. The complaint was dismissed, and plaintiffs appeal.
    
      Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Geo. Carlton Comstock, for appellants. Thomas Mo Adam, (B. P. Wilder, ■of counsel,) for respondent,
   Bartlett, J.

The plaintiffs are importers of diamonds, carrying on business in the city of JSTew York. On July 13, 1885, they let Mrs. Pauline Jacquin have a pair of diamond ear-rings to sell to a customer whom she said she had, named Mrs. Morgan, for $1,400. Mrs. Jacquin did not bring back the money or return the ear-rings, and the diamonds were eventually discovered in the custody of the defendant, who is a pawnbroker trading under the name -of Thomas Green, and who claims to have advanced $600 upon the ear-rings upon a pledge of the same to him by Mrs. Jacquin. This suit was brought to recover the diamonds or their value, which is fixed in the complaint at $1,365, together with damages for the detention thereof to the amount of $135. At the close of the testimony offered in behalf of the plaintiffs, the complaint was dismissed upon motion of the defendant, and from the judgment entered upon such dismissal the plaintiffs now appeal.

The facts closely resemble those which were presented in Heilbronn v. McAleenan, 1 N. Y. Supp. 875, which was an action arising out of a similar transaction on the part of Mrs. Jacquin and her son. In the case at bar the complaint must have been dismissed on the ground that Mrs. Jacquin, under the arrangement between her and the plaintiffs, acquired a general power of sale, instead of having her authority restricted to the right to sell and deliver to a particular person only. If the evidence on the part of the plaintiffs war-' ranted no other conclusion than that the power of sale conferred upon Mrs. Jacquin was general, so that she became a factor of the plaintiffs, then this ■disposition of the case might have been correct; but wre do not think that the proof necessarily demanded that inference. On the contrary, it seems to us •that the jury might well have found, from the testimony of the plaintiff ICauffmann, that the goods were intrusted to Mrs. Jacquin for a special purpose only,—that is, to be sold to the Mrs. Morgan, who was spoken of; and that there was no design or intention on the part of the plaintiffs to intrust the diamonds to Mrs. Jacquin to sell to any other customer, or to give her any general power of sale in respect to them. It is true that the plaintiff ICauffmann testified on cross-examination that he supposed he would have taken the money if Mrs. Jacquin had sold the ear-rings to some other customer than Mrs. Morgan. “One man’s money,” said the witness, “is as good as another’s. But this statement, after the event, amounts to nothing more than saying that the plaintiffs would have been satisfied if they had been paid for their diamonds without caring particularly as to the source whence payment proceeded. It cannot fairly be interpreted as meaning that they bestowed upon Mrs. Jacquin, their bailee, a general instead of a special and restricted power of sale. The most that can be said is that the testimony in respect to the authority conferred upon Mrs. Jacquin, by the arrangement between her and the plaintiffs, was capable of supporting two inferences,—one, that the power of sale was special; the other, that the power of sale was general. Under these circumstances, it was for the jury, and not for the court, to say which inference ought to be drawn from the facts, although the facts were undisputed. Bank v. Dana, 79 N. Y. 108, 112; Smith v. Coe, 55 N. Y. 678. We think that a case was presented which should have been allowed to go to the jury; and, even if a general power of sale was established, the defendant ought to have been put to his proof that he was a pledgee of the diamonds in good faith, and entitled to a lien upon them to the amount of the $600 which he claims to have advanced. The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the result. All concur.  