
    (125 App. Div. 589.)
    MILLANG v. DONOHOE.
    (Supreme Court, Appellate Division, Second Department.
    April 24, 1908.)
    Factors—Consignment for Sale—Action for Price.
    Where plaintiff consigned certain boxwood to a factor for sale, he could not recover the price of any part of the consignment, which was neither sold by the factor nor withheld by him, but which he held subject to plaintiff’s orders, without asserting any claim of title or right of -possession, save that derived from the consignment
    Appeal from Municipal Court, Borough of Queens, Second District.
    Action by Charles Millang against William H. Donohoe. From a Municipal Court judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.
    I. N. Jacobson, for appellant.
    Baggott & Ryall, for respondent.
   PER CURIAM.

As to the first cause of action, the evidence in this case indicates, even that for the plaintiff, that the boxwood, or at least a large part thereof, was received on consignment. Upon the proof in this case the plaintiff cannot recover the price for that part, if it was neither sold by the defendant nor withheld by him, but was held by him subject to the plaintiff’s orders, without assertion of any claim of-title or right of possession, save that derived from such consignment. As to the second cause of action, it is admitted that the defendant owes $50 for the -horse, and whether this is due, or $100 is due, can more clearly be determined upon the new trial. As to the third cause of action, it appears that in any event the assignor of the plaintiff was entitled to the earnings of the horse. If the earnings of the wagon when drawn by the horse belonged to the plaintiff, or if the earnings of the team belonged to the plaintiff, that can be established upon the new trial, and the complaint may be amended accordingly, and should be so amended, without terms.

The judgment is reversed, and a new trial is ordered; costs to abide the event.  