
    Pauline Wolf, Appellant, v. Gregorio Di Lorenzo et al., Respondents.
    (Supreme Court, Appellate Term,
    January, 1898.)
    1. Sale — Bes gestae — Unsigned copy of an agreement of conditional sale.
    Where the complaint states two causes of action, one for goods sold conditionally and. the other for goods sold absolutely, and the defendants claim that the goods alleged to have been sold absolutely were comprised in the conditional sale, they may prove, as a part of the res gestae, an unsigned instrument, furnished by the plaintiff, purporting to be a copy of the conditional agreement of sale and dated the same day, which does not show the articles which, the plaintiff claims were sold absolutely.
    3. Same — Goods not in existence.
    Goods which, at the time of their alleged absolute sale, had been destroyed by fire, cannot be made the subject of sale.
    3. Costs — Collusive separation of answering defendants — Appeal.
    Where the plaintiff claims that the defendants have answered separately merely to tax separate bills of costs, she must show that their interests were identical and the severance collusive; and where that question is, upon a motion for a retaxation of costs, decided, adversely to her, the resulting order, involving a question of discretion, is not appealable to the Appellate Term.
    Wolf v. Di Lorenzo, 311 Mise. Rep. 821, dismissed.
    Appeal by tbe plaintiff from an affirmance, by the General Term of the City Court of New York, of a judgment rendered upon a verdict in her favor upon the second cause of action alleged, after dismissal of the complaint as to the first cause of action. Also appeal from affirmance of order denying plaintiff’s ■ ' motion.-for a retaxation of costs in,the court below.
    George W. Glaze, for appellant.
    Leopold Leo, for respondent Gregorio Di Lorenzo.
    John L. N. Hunt, for respondent Johanna Di Lorenzo.
   Bischoff, J.

The plaintiff, a dealer in household furniture, sold certain articles to the defendants ' under a conditional agreement of sale, expressed as a contract of rental, but looking to the final passing of title to the' purchasers upon their duly making payment, of an agreed sum in stated installments. ' For a first cause of action, the complaint set forth the delivery under this agreement, but no default of tire agreed payments was alleged,- and the demand for judgment was based solely upon allegations of a modification of the contract whereby the goods were sold to the defendants • absolutely, and of their failure to pay the price agreed upon on such sale. •

The right of the plaintiff to recover upon the second cause of action for the purchase price of another and distinct bill of goods, sold to the defendant unconditionally, was conceded at the trial except with regard to an item of $17.50, representing the price of certain' rolls of matting which were claimed by the defendants to have been purchased under the first, or conditional, contract, and so not properly the subject of recovery upon the second cause of action.- - -

Since the complaint was dismissed as to the first cause of action, for failure of proof, the only question remaining for the- jury was whether or not this' item of $17.50 Was for goods purchased in' the course of the .second-transaction, and they have found that it was not, but upon evidence the admissibility of which is attacked by the appellant.'

To support their claim that the item in question was included - among the goods sold under the conditional agreement, and so not applicable to'the second cause of action, the defendants offered in . evidence a paper framed substantially as a duplicate of that agreement, but unsigned, and containing a schedule of the goods referred to in the body of the paper as the subject of the trans-^ action. In this schedule appeared the item -of. $17.50 for matting, which item did not appear in the schedule annexed to the executed agreement, which remained in the plaintiff’s hands, but it was admitted that the paper produced by the defendants had been prepared by the plaintiff and given to them by her, upon their request for a memorandum of the articles covered by the agreement.

The objection to the reception-of this paper in evidence, upon the ground that it tended to vary the written contract, was not well -taken. The paper, having been drawn up by the plaintiff, and purporting to be a memorandum of the written agreement bearing the s.ame date, was, under the circumstances, admissible as a part of the res gestae (Eager v. Crawford, 76 N. T. 97), and from the defendant’s further evidence, received without objection, it appeared that the item in dispute was, in fact, the subject of the conditional sale.

The remaining point raised by the appellant has' to do with the propriety of the dismissal of the complaint as to- the first cause of action, but we .think, as to this, that there was a total failure of proof of the allegations and that the ruling was correct.

As alleged, so far,, the action was for the full purchase price of the goods delivered under the conditional agreement, the demand being based upon a subsequent sale of those goods, absolutely, but, from the only evidence given in support of the defendants’ promise to' pay the full price as upon a sale, it appeared that this promise was made and the sale in form 'concluded at a time when, within the full understanding of all the parties, the goods had been totally, destroyed by fire. Hence, there wTas no subject of sale and no possibility that the minds of the parties had met upon a sale.

The conditional agreement contained a clause giving a right to the plaintiff, in case of default, to remove the goods and to “ collect all reasonable charges for the use thereof and expense of removal) and injuries thereto,” and, according to the plaintiff’s ■ evidence, it appears that -the defendants conceded or assumed that they were liable-for the value, of the'property,'as destroyed by fire when in their possession, since, after the fire, the defendant Gregorio Di Lorenzo approached the plaintiff’s agent upon the subject, and, apparently recognizing the. indebtedness, assented to the plaintiff’s proposal that an absolute bill of sale be taken by the defendants and payment made as soon as their eircumstan’ces rendered it possible. Whether or not there w^as a promise to pay for the goods destroyed enforcib-le by the plaintiff is' not a question which is now presented, but, assuming that there was a possible ground -of recovery, that ground was not the subject of this action, which proceeded solely upon a sale, and no consent to litigate .a cause of action other than that pleaded could be inferred from the defendants’ failure to object' to the admission of. 'the evidence- of this promise, since such evidence was relevant to the issue of the alleged sale.

The questions above considered cover the'points raised by the appellant, so far as the matters in argument are presented by objections and exceptions duly, taken at the trial, and we conclude that the judgment should be affirmed,- with costs.

By appeal from the affirmance of an order denying- a motion for a relaxation of costs, the appellant seeks to present to- this court the question whether these defendants, separately answering and appearing by separate attorneys, were properly permitted to tax separate bills of costs, there being no dispute that the defendants ■ became entitled to costs, generally, because of the plaintiff’s failure to recover $50 in the action.

It . is said that the separate appearance was collusive and was merely for the purpose of enabling the defendants to- tax more than one bill, but the matter is not one which may-be addressed to the consideration, of this court.

Successful defendants who have interposed separate answers, and-have separately appeared, may insist that their several bills of costs, be taxed by the clerk, as of . course, and the plaintiff, if contesting the taxation, must sustain the burden of showing that the defendants’ interests were identical and that the severance was collusive. D., L. & W. R. R. Co. v. Burkard, 40 Hun, 625.

Accordingly the motion for retaxation proceeded upon a question of fact, calling for the exercise of' discretion by the court below, -and the resulting order is not appealable to the Appellate' Term. Kreizer v. Allaire, 16 Misc. Rep. 6.

Appeal from order , dismissed, with costs.

Daly, P.. J., and McAdám, J., concur. •

Judgment affirmed, with costs-and appeal from order dismissed, with costs..  