
    Isaac S. Meyer and Others, Copartners, Engaged in Business under the Firm Name and Style of Meyer Brothers, Respondents, v. Alfred H. Smith and Harrison B. Smith Composing the Firm of Alfred H. Smith and Company, Appellants.
    First Department,
    February 2, 1912.
    Conversion—.replevin —facts not justifying recovery.
    Action of replevin to recover a pearl, both parties claiming ownership. Evidence -examined, and held, that a judgment for the plaintiff should be-reversed -and a new trial granted.
    
      Appeal by the defendants, Alfred H. Smith and another, composing the firm, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 22d day of April, 1911, upon the verdict of a jury for $1,600, and. also from an order entered in said clerk’s office on the 25th day of April, 1911, denying the defendants’ motion for a new trial made upon the minutes.
    
      Franklin Bien, for the appellants.
    
      Adolph Hirsch Rosenfeld, for the respondents.
   Laughlin, J.:

This is an action in replevin to recover a pearl, the ownership of which is claimed by both parties. The plaintiffs are dealers in jewels and precious stones and their place of business is at 59 Nassau street, borough of' Manhattan, New York. About a week prior to the 2'Tth day of May, 1909, one Henry Sessler called at plaintiffs’ place of business and presented the pearl in question unset and left if with the plaintiffs on memorandum for sale, and fixed the selling price at $1,500. The plaintiffs understood that Sessler was acting for himself as an independent dealer, and had had many other business transactions with him. On said twenty-seventh day of May plaintiffs, having been unable to sell the pearl, purchased it from Sessler for $1,000, paying him by check and taking his receipted bill. The plaintiffs then delivered the pearl to a broker to sell foi them; and shortly thereafter he called on the defendants, who were also dealers in jewelry and precious stones, and offered it for sale. One Frazee, a buyer for the defendants, claimed to recognize it as a pearl owned by the defendants, and on this claim being made, Frazee- and the broker called at the office of the latter’s attorney, who- accompanied them to a Magistrate’s Court, and by direction of the magistrate the pearl was delivered to the property clerk of the police department. One Loewy, from whom Sessler, at the time of the sale to them, informed plaintiffs he had purchased it for $500, was arrested and arraigned in' the Magistrate’s Court, but he was subsequently discharged. The plaintiff then brought this action against the property clerk, who interpleaded the defendants.

This is the only evidence of title on the part of the plaintiffs. It was conceded that at the time of the commencement of this action on September 20, 1909, the pearl was worth $1,600.

The defendants claimed and gave evidence tending to show that they purchased the pearl in the month of April, 1909, from one Brower through his salesman Kohut; that after purchasing it they set it in a ring with diamonds; that their manager, Vogel, delivered it with eleven other articles on May 12, 1909; to one Silo, an auctioneer at 546 Fifth avenue, to be sold at auction; that five days later Vogel called at Silo’s, evidently to obtain the proceeds of the articles if sold, or the articles themselves if not sold, and Silo’s clerk delivered to him and checked off twelve articles and placed them in an envelope; that Vogel did not inspect them at that time, but inspected them immediately on his return to defendants’ place of business, and he then discovered that the pearl and its diamond setting and the ring had not been returned; but that a “fake ring ” had been delivered to him in its place by Silo’s clerk. The undisputed evidence shows that Silo did not account to defendants for the sale of the ring and pearl. Silo testified that he sold one of the articles delivered to- him for sale by the defendants, but he did not know what the article was, nor does it appear whether the sale was made before or: after Silo returned the articles to defendant. The evidence tends to show that only twelve articles were delivered to Silo for sale and that eleven of the articles returned were the articles delivered. It thus appears that Silo was authorized for a period of five days at least to sell the pearl, and if he sold it during that time good title passed to the purchaser and defendants’ recourse would be against Silo.. The case, however, was not tried on that theory, but upon the theory that the pearl could not be satisfactorily identified as the one owned by the defendants, and that was the question of fact submitted to the '.jury, and in submitting it the court charged that there was no evidence that Silo sold the pearl, and it does not appear that any exception was taken thereto. On the question of fact submitted to the jury for its determination we are of opinion that the verdict is clearly against the weight of the evidence. On the part of the plaintiffs it is claimed and evidence was given tending to show that such pearls may readily he matched and that it is impossible to positively identify them; but on the part of the defendants evidence was given by the testimony of Kohut, from whom the pearl was purchased, and of Frazee, defendants’ buyer, and of Vogel, positively identifying the pearl as the one owned by the defendants, and the ring and diamond setting were found in the possession of Sessler, from whom the plaintiffs’ purchased the pearl.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

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