
    MORITZ COHN, Appellant, v. EDWARD H. AMMIDOWN and Another, Respondents.
    Warranty—Of title to personal chattels sold to plaintiffs by
    DEFENDANTS AS TRUSTEES IN A MORTGAGE OF THE CHATTELS—To SUSTAIN AN ACTION AGAINST THEM IT IS NECESSARY TO SHOW A BREACH OF THE WARRANTY, THAT IS, THAT THE DEFENDANT HAD NO TITLE.
    Plaintiff’s exceptions ordered to be heard in first instance at general term.
    
      Leonard Brown, for plaintiff.
    
      A. P. Whitehead, for defendants.
   Sedgwick, J.

The action was for an alleged breach of warranty of title to personal chattels, sold to plaintiffs, by the defendants as trustees, in a mortgage of the chattels. Several important questions were raised on the trial. The examination of one, will settle the present motion.

fl he exception was taken to the dismissal of the complaint. The ruling of the court was correct. Assuming that the defendants had impliedly warranted their title to the goods sold, to sustain an action against them, it was necessary to show a breach of the warranty, that is, that the defendants had no title. So far as the evidence shows, the plaintiff after the sale went into possession and retained it for some time. Then a third person took possession and refused to allow the plaintiff to retain possession. Why or under what claim this third person acted is not shown.

The plaintiff gave in evidence the judgment in an action—not the rest of the judgment-roll. The title of that action was Moritz Cohn, the present plaintiff, against Gardner R. Colby, as executor, etc., and the judgment shows that the plaintiff recovered against the defendant, damages for conversion by him of certain chattels of the same general description as those in this action. The only impression from this, is that the plaintiff did, if the goods are the same, get'title to them from the present defendants’ sale to the plaintiff. There was no other evidence of a breach by defendants.

Plaintiff’s exceptions are overruled and judgment of dismissal of the complaint directed with costs.  