
    (27 Misc. Rep. 494.)
    GRUEL v. YETTER.
    (Supreme Court, Appellate Term.
    May 24, 1899.)
    Appeal—Weight of Evidence.
    On appeal from a judgment entered on a verdict and' affirmed by the general term, the weight of the evidence cannot be considered.
    Appeal from city court of New York, general term.
    Action by John Gruel against Andrew B. Yetter. From a judgment of the general term of the city court, affirming a judgment for plaintiff entered on a verdict and from the order of affirmance (55 N. Y. Supp. 443), defendant appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.
    Wilder & Anderson, for appellant.
    Einstein & Townsend, for respondent.
   FREEDMAN", P. J.

The judgment entered upon the verdict having been affirmed by the general term of the city court, we cannot consider the weight of evidence. There is sufficient evidence to sustain the judgment upon a breach of contract. If it were necessary, and the complaint would permit it, the judgment could even be sustained on the theory that the evidence sufficiently established a cause of action based on false representations. This was done on substantially the same state of facts in Dietz v. Tetter, 34 App. Div. 453, 54 N. Y. Supp. 258. There is no evidence that the plaintiff waived the condition as to the fireproof character of the defendant’s warehouse. Moreover, the defendant, as bailee, is not in a position to dispute the title of the plaintiff, from whom he received the property. It is well settled that a bailee or agent cannot, at law, dispute the original title of the person from whom he received the property, though he is at liberty to show that his bailor has parted with his interest in the property subsequent to the bailment or to the delivery to the agent. In the case at bar there is no pretense of any subsequent parting by the plaintiff with his interest. The case discloses sufficient evidence from which the jury could find the value of the goods destroyed. None of the exceptions taken appear to have sufficient merit to call for a reversal of the judgment. Judgment should be affirmed) with costs.

Judgment affirmed, with costs to the respondent. All concur.  