
    Otto W. P. Westervelt and Carl F. Braun, Composing the Firm of W. H. Westervelt & Company, and Edward J. H. Tamsen, as Sheriff of the City and County of New York, Respondents, v. George A. Phelps and Others, Composing the Firm of Phelps Brothers & Company, Appellants.
    
      Sill of lading— transferred to an agent malting advances thereon for his principal to whom the agent transfers it — attachment of the balance of the cash proceeds of the goods in the hands of the principal after payment of the advances.
    
    In an action brought by certain attaching creditors and by the sheriff of the county of New York against the firm of Phelps & Co. to recover the proceeds of a consignment of goods sold hy the firm of Phelps & Co., levied upon under an attachment, obtained ¡against Vincenzo Canepa, it appeared that the latter shipped the goods from Palermo, Italy, upon a steamship owned hy Phelps & Co., and received bills of lading reciting that he was the shipper and that the - goods on arrival were to be delivered “ unto order, or to his or their assigns;” that Lagaña & Co., the Palermo agents of Phelps & Co., who were authorized to make advances for their principal, advanced moneys to Canepa upon the goods mentioned in the hill of lading, which was indorsed hy Canepa to Lagaña & Co., who in turn indorsed it to Phelps & Co.; that the shipping documents were sent by Lagaña & Co. to Phelps '& Co., at Liverpool, who forwarded them to their New York house; that on their arrival in New York, Phelps & Co. sold the goods at auction, deducted the advances and charges, and, after the attachment was levied, remitted the balance to Phelps <& Co.’s Liverpool house. Phelps & Co. disclaimed ownership of such balance, and contended that the title thereto was in Lagaña & Co.
    
      Held, that such disclaimer of Phelps & Co. did not necessarily leave the title to the balance of the proceeds of sale of the goods in Lagaña & Co., but that the attaching creditors might show from the whole transaction that Canepa ■ remained the owner of the goods subject to Phelps & Co.’s advances;
    That, in the absence of proof that Lagaña & Co. sustained any other relation to the transaction than that of agents of Phelps & Co., the evidence warranted the finding that the balance belonged to Canepa.
    Appeal by the defendants, George A. Phelps and others, composing the firm of Phelps Brothers & Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the 27th day of June, 1899, upon the verdict of a jury rendered by direction of the court.
    
      Lorenzo Ullo, for the appellants.
    
      Frederic W. Hinrichs, for the respondents.
   Patterson, J.:

The defendants appeal from a judgment entered upon a verdict directed by the court, in an action brought by Westervelt & Co., attaching creditors, and. the sheriff of the city and county of New'York, to recover a sum of mofiey in the possession of the defendants and which it is alleged in the complaint belongs to the defendant in the attachment process. In their answer in this action, these defendants disclaim ownership of- the money, but set up that they hold it for other parties to whom they are liable to account for it. The issue tried and determined related only to the subject of ownership. Both the plaintiffs and defendants asked for the direction of a verdict, and the appeal'being from the judgment alone, we are to inquire if there is evidence to support the direction given and a consequent liability of the defendants as matter of law under that evidence.

On the issue of ownership, the material facts may be briefly stated: The defendants were shipping merchants, having an office at Liverpool and another at the city of New York. In addition to their business as carriers they received consignments of merchandise from foreign shippers and made advances of money thereon. All advances were made by the Liverpool house or its agents at the place at which the goods were shipped. Such goods were brought to New York on the defendants’ vessels and were sold generally at auction, the proceeds of sale being applied to the payment of advances and charges, and any.balance arising in favor of the shipper or owner of the goods was remitted to the Liverpool house. On the 19th of June, 1897, Vincenzo Canepa, the defendant in the attachment process, shipped at Palermo, in Italy, upon one of the defendants’ steamships, 190 boxes of lemons to be carried from the port of shipment to New York. He received bills of lading which recited that he was the shipper and that the goods on arrival were to be delivered unto order, or to his or their assigns.” Messrs. Lagaña & Co.- of Palermo were agents of the defendants, authorized to make advances upon shipments of merchandise and that firm did advance for the defendants to Canepa a sum of money upon the goods mentioned in tiñe bill of lading, and that bill of lading was indorsed by Canepa to Lagaña & Co., who in turn indorsed the same bill of lading to' these defendants. It appears that all the shipping documents were sent by Lagaña & Co. to the defendants’ house at Liverpool, who forwarded them to the house át Hew York, where, after' their arrival,, the goods were sold at auction, the amount of the advances and charges, were realized and the resulting balance remitted, after1 the attachment was levied, to the defendants’ house at Liverpool.

It was incumbent upon Westervelt & Co., as creditors of Canepa, to show that' the balance attached belonged to him, and that bui> den has been sustained. The defendants’ position seems to be that title to the merchandise or to the proceeds of sale, after deducting charges, was in Lagaña & Co. by force of the relations established by the bill of lading ; and that inasmuch as these defendants were transferees of that bill of lading, merely to secure them for their advances, and those advances being fully paid, Lagaña & Co. are to be regarded as the real owners under the bill of lading; or, to state it in another form, the claim is, that the defendants were bound to recognize Lagaña & Co. as holding the legal title to the balance of the proceeds of the sale of the lemons, because the indorsement by Canepa of the bill of lading to Lagaña & Co. passed to them the legal title to the goods, and the defendants’ demands being satisfied, that legal title remains in Lagaña & Co.

The rights of-these parties are not dependent upon relations established by the bill of lading alone. The delivery of a bill of lading is, doubtless, a good symbolical delivery of the goods mentioned in it, and title and possession will be presumed to have passéd by indorsement, of it to a particular person (Mechanics & Traders' Bank v. Farmers & Mechanics' Nat. Bank, 60 N. Y. 40; Commercial Bank of Keokuk v. Pfeiffer, 108 id. 250), and often by the delivery of the bill of lading without indorsement. (City Bank v. Rome, Watertown & Ogdensburgh R. R. Co., 44 N. Y. 136; Merchants' Bank v. Union R. R. & T. Co., 69 id. 379.) But a bill of lading is not conclusive evidence as to the ownership of the goods described in it; it may -be explained or rebutted by parol evidence. (Bailey v. Hudson River R. R. Co., 49 N. Y. 70.) It raises a presumption of title, but that may be rebutted by evidence showing that the consignor, and not the consignee, is the real owner. (Price v. Powell, 3 N. Y. 322.)

By the indorsements of the bill of lading in this case the title and possession was in Phelps & Co. Their disclaimer of ownership of the balance in- their hands does not necessarily leave the title to that balance in Lagana & Co. It was open to the plaintiffs to show from the whole transaction to whom those proceeds in reality belonged, and there was sufficient in the proof to show that Canepa was the owner. He made the shipment; he received the advances from Lagana & Co., agents of the defendants Phelps. There is nothing to show that Lagaña & Co. advanced a dollar for their ■own account or in any way became connected with the transaction, except strictly as agents of Phelps & Co. All the documentary evidence shows that Canepa remained the owner subject to Phelps & Co.’s advances. The invoice was made out of goods shipped by Canepa. All the ship’s documents state the same facts. The catalogue of merchandise sold by' the defendants in Hew York, including the consignment in question, refer to that consignment as Canepa’s goods. The instructions given by the defendants’ Liverpool house to the Hew York house respecting the 190 boxes of merchandise, •declared the consignment to be “ for account Vincenzo Canepa,” and the account of sales sent by the Hew York house to the Liverpool house of the 190 boxes, states the merchandise came from .Palermo for the account and risk of Mi-. V. Canepa.

There was, therefore, enough to sustain the finding of the trial judge that the balance really belonged' to Canepa, in the absence of .any proof that Lagaña & Co; had any other relation to the transaction than that of agents of' the defendants.

There is no other question in the case requiring consideration, and tlie judgment should be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, with costs.  