
    Chapin v. Fitzgerald.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Sale—What Constitutes.
    Goods were ordered by H., and a truckman acting for the vendor left a wagon-load of them on the sidewalk in front of H.’s store, in charge of his porter. As the truckman drove up with the balance of the goods, the entire lot was attached. Held that, no opportunity having been given to H. to examine the goods, title did not pass to him.
    2. Wrongful Attachment.
    A defendant at whose instance and for whose benefit an attachment is wrongfully levied, and who accepts the proceeds of a sale of the goods levied on, is guilty of trespass.
    Appeal from judgment on report of referee.
    Action by Warren Chapin against James M. Fitzgerald, for the conversion of a quantity of blank books. The goods were manufactured by the George W. Cross Blank Book Association, and shipped by it, in compliance with an order from a Hew York firm, named Howard Bros. The Cross Company wrote to Jersey & Bro., cartmen, advising them of the shipment, and requesting them to deliver the blank books to Howard Bros. Accordingly, on their arrival, a truckman was sent to convey the goods to Howard Bros. He unloaded one load of the goods on the sidewalk in front of the store of Howard Bros., and left it in charge of their porter, while he returned for the balance. As he drove up with the second load the entire lot was attached by a sheriff at the instance of the defendant. The Cross Company assigned their cause of action to plaintiff.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      Edward P. Wilder, for appellant. L. T. Yale, for respondent.
   Pratt, J.

Appellant is in error in contending that the title to the goods had passed to Howard. The truckman was the agent of the vendor, not of the vendee. To pass the title, required not only delivery, but acceptance. Ho •claim is made that the goods had been accepted, and the case of Kein v. Tupper, 52 N. Y. 550, is authority to show that, even as to the first load of goods, the delivery was not complete. Ho occasion existed for Howard Bros, to “repudiate the delivery, ” or to do anything about it. Hot until the whole lot of goods was delivered to them, and opportunity allowed them to examine whether their order had been complied with, were Howard Bros, under obligation to accept or refuse the goods. That time never arrived. The evidence on which defendant was held liable for the trespass was sufficient for that purpose. The attachment was at the instance of the defendant, and for his benefit. He had prompt notice of what was done, and never dissented. The attachment and sale were ratified by him when he accepted the proceeds. If it be said that he was mistaken in the ownership, so was the sheriff. Ho indemnity bond is necessary to fix the liability of the plaintiff in the execution where he is present in person at the wrongful levy, which proceeds by his procurement. The evidence offered of judgments recovered against Cross was properly excluded. It did not appear that the property in suit had ever-belonged to Cross, but the contrary. The judgment should be affirmed, with costs.  