
    Theodore Phillips, Resp’t, v. Burton A. Phillips, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    Replevin—Ownership.
    In an action of replevin before a justice of the peace, the evidence as to the ownership of the property was conflicting, plaintiff testifying that he bought the property and sold it to his brother, who was unable to pay for it and surrendered the title, and defendant that he purchased it of the brother before the date of the sale to him, as testified to by plaintiff; that he afterwards resold it to said brother, and again repurchased of him after the time of such surrender of title. Held, that a judgment in favor of plaintiff was in accordance with the probabilities of the case, and would not be disturbed.
    Appeal from judgment of the Dutchess county court, affirming judgment of a justice of the peace in favor of plaintiff
    Action of replevin for a two-horse power and spike.
    
      Heermance & Arnold, for app’lt; Usselstyn & McCarty, for resp't.
   Barnard, P. J.

The plaintiff makes a good title to the threshing machine. He purchased it for his brother Sylvester in March, 1884. The plaintiff gave his note upon a credit of eight months. The plaintiff then delivered the machine to Sylvester under the arrangement that Sylvester was ,to own the machine if he paid for it in two years, In 1889, Sylvester bought the machine of the plaintiff and gave a chattel mortgage back to him for sixty-five dollars. Sylvester failed to pay the mortgage and gave the machine back to the plaintiff in the following year and the parties passed receipts, so that the machine belonged to plaintiff and the chattel mortgage was paid in full by a surrender of the property for which the mortgage was given. The defendant makes title to the machine by purchase of Sylvester in 1888. This was before Sylvester got a title, but the defendant agreed to pay the plaintiff the note given for the machine. The defendant did not pay this note and subsequently sold the machine back to Sylvester Phillips in December, 1889. In August, 1890, the defendant bought the machine back from Sylvester. The defendant' promised the plaintiff to pay the old note given for the machine. He did not do it. The issue between the parties is thus narrowed down to this: the plaintiff says that the chattel mortgage was released to Sylvester upon the return of the machine to the plaintiff. The defendant says that the plaintiff agreed to release the chattel mortgage so that he could get title without actual payment and so as to enable the defendant to sell a machine he had not paid for. The justice found the question of fact in accordance with the probabilities of the case.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  