
    Wayne Litzenberg, Respondent, v. Imogen H. Cole, Appellant.
    First Department,
    February 11, 1915.
    Sale — bailment — action to recover purchase price of jewelry delivered for inspection — loss in transportation.
    Where, in an action to recover the purchase price of jewelry alleged to have been sold and delivered to the defendant, it appears that the plaintiff mailed to the defendant certain pieces of jewelry, from which she was to select one and return the others; that after making the selection she delivered the other pieces, properly addressed to the plaintiff, to an express company, but they were never received by the plaintiff; and that after the plaintiff ha‘d opened negotiations with the express company concerning the loss, he formally assigned his claim to the defendant, pursuant to which she received fifty dollars, the limited liability of the express company, there is no basis for a recovery upon the theory that the jewelry returned was sold and delivered to the defendant, and the complaint should be dismissed.
    The transaction between the parties constituted a bailment, and the defendant was merely a bailee.
    Appeal by the defendant, Imogen H. Cole, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 17th day of June, 1914, denying the defendant’s motion for a new trial made upon the minutes.
    
      Clifton P. Williamson [Charles W. Pierson with him on the brief], for the appellant.
    
      Robert M. Simpson, for the respondent.
   Laughlin, J.:

The plaintiff alleged that on the 14th day of November, 1913, at the special instance and request of the defendant, he sold and delivered to her jewelry consisting of five bar pins and three brooches, of the agreed price and reasonable value of $277, no part of which, with the exception of $20, has been paid, although the purchase price has been duly demanded; and he demanded judgment for the balance of $257 together with interest and costs. The defendant denied the material allegations.

The plaintiff was a jeweler and his place of business was in the Cambridge Building at Fifth avenue and West Thirty-third street, borough of Manhattan, New York, and defendant resided at Claverack, N. Y. She evidently had purchased jewelry of plaintiff before, for on the 10th day of November, 1913, she wrote him from her home requesting him to send her “a Brooch of Peridots and Pearls to match the necklace” which she purchased of him the year before. In the letter she stated that she thought “ a bar pin would be preferable,” and that the stones in the necklace to which she referred were “light green.” The letter closed with a sentence as follows: “ If you have one that you think handsome, you need send only the one.” On November 14, 1913, the plaintiff wrote the defendant, saying: “I am sending you a package by parcel post, containing 8 pieces of jewelry, hoping you can make a selection. Some are Peridots, others Turmerlins.” The defendant received the jewelry and selected a brooch, the price of which was indicated to be twenty dollars, and on the seventeenth day of the same month delivered the others to the American Express Company at Claverack, inclosed in a wooden box in which they had been sent to her, wrapped in strong paper and tied with heavy cord, to be returned to the plaintiff at his place of business, and at the same time wrote him acknowledging the receipt of the jewelry and inclosing a check for twenty dollars for the brooch selected, and stating that she was returning the other pieces by express. The package containing the seven pieces of jewelry was not delivered to the plaintiff by the express company. The plaintiff wrote the defendant under date of November twentieth, evidently stating that he had not received the express package, for on the twenty-first of November she wrote him, referring to his letter, and inclosing the express company’s receipt, and stating: “I would investigate at the office here, but thought by this time it might have reached you safely.” It is to be inferred that the plaintiff subsequently wrote the defendant claiming that she was Hable to him for the jewelry which she thus returned, for on the 14th day of .January, 1914, she wrote him, referring to a letter from him under date of December fifteenth requesting her to send a check, and disclaiming responsibility on the ground that she requested him to send only one pin, and that she had returned the others to him by the American Express Company.

The plaintiff proved a claim voucher of the American Express Company, embodying a receipt signed by the defendant under date of February 5, 1914, acknowledging the receipt of fifty dollars from the express company in full settlement of a claim made under the receipt given by the express company for the jewelry. It recites that the money was received by the defendant at Claverack. The defendant, however, proved that prior thereto the plaintiff opened negotiations with the express company concerning the loss of the jewelry, and on the 15th day of December, 1913, formally assigned his claim as consignee to her. The assignment evidently was delivered to the express company in New York, for it was stamped, received by the express company at its Broadway office on the sixteenth of December; and there is no evidence that it was delivered or that the express company’s receipt was returned to plaintiff. It is fairly to be inferred that the money was paid to the defendant pursuant to that assignment, and that she signed the receipt at her home, or at the office of the express company at Claverack; and that in collecting it she was acting for the plaintiff. But if this were not so she would have the right as bailee and consignor of the jewelry to enforce the liability of the carrier for the loss thereof. (Kellogg v. Sweeney, 1 Lans. 397; affd., 46 N. Y. 291; Abrahamovitz v. New York City R. Co., 54 Misc. Rep. 539, and cases cited.) The receipt given by the express company for the jewelry was not received in evidence, but the correspondence indicates that no valuation of the package was demanded by, or stated to, the express company, and doubtless for that reason its liability was limited to fifty dollars. No question, however, with respect to the duty of the defendant as bailee of the jewelry in endeavoring to return it or with respect to the extent of the liability of the express company is presented for decision.

Both parties moved for the direction of a verdict, and thereupon the court granted the plaintiff’s motion.

There is no basis for the recovery. Upon no theory was there a sale and delivery of the seven articles of jewelry for which the recovery has been had; and that is the only ground of liability alleged. With respect to the seven pieces of jewelry the defendant was merely a bailee.

It follows that the judgment and order should be reversed, with costs to the appellant, and the verdict set aside, and the complaint should be dismissed, with costs, on defendant’s motion at the close of the evidence, to the denial of which she duly excepted. The finding that there was a sale and delivery of the property described in the complaint is reversed.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs.  