
    Paulino Wolf, Appellant, v. Gregorio Di Lorenzo and Johanna Di Lorenzo, Respondents.
    (City Court of New York, General Term,
    October, 1897.)
    1. Appeal — Variance as to the ground of recovery upon a sale.
    Where the plaintiff alleges an absolute sale of personal property, demands judgment for a balance due thereon and makes proof which follows the complaint, he cannot, upon appeal, abandon that position and seek to recover for an installment, as under a conditional sale of the same property, alleged to have become due before the property was destroyed by fire.
    8. A loss of personal property, by fire, falls upon the holder of the legal title.
    Where no special agreement relative to the matter exists and where none is alleged or proved, a loss .of personal property, occasioned by fire, attends upon the title to the property and not upon its possession.
    Appeal from a judgment in favor of defendants entered upon a verdict.
    La Fetra & Glaze, for appellant.
    Leopold Leo, for Gregorio Di Lorenzo.
    John L. Hunt, for Johanna Di Lorenzo.
   Conlan, J.

The action is brought to recover a sum as the alleged consideration of the sale of personal property upon two- separate counts or causes of action.

Defendants appear separately and as to the first cause of action they allege that the property included therein was the subject of a conditional sale, amounting, as they claim, to the sum of $217.10, but as the plaintiff alleges $202.60, the difference between these two sums being represented by the price of three rolls of matting, which, the defendants claim, should be included in the items constituting the first cause of action.

The defendant, Johanna Di Lorenzo, does not answer the second cause of action as to which her codefendant says that inasmuch as $14.50 included therein properly belongs as an item in the first cause of action, there is only due the plaintiff on account thereof the sum of $31.10. A separate defense is then interposed by each of the defendants, that the property was the property of the plaintiff and was destroyed by fire.

A question of some importance is presented by this item of $14.50, for, if the property belongs to the second cause of action, then the plaintiff would have been entitled to a judgment in her favor on the second cause of action.'

The question was fairly presented, to and has, we think, been properly left to the jury, who 'found otherwise, in favor of the defendants and we are not inclined to disturb that finding, It distinctly appears as an item in defendants’ exhibit 1, which was a paper delivered to the defendants by the plaintiff, and which related wholly to the first'cause of action.

Plaintiff’s counsel in the course of his argument as upon his brief, plainly attempts to abandon his right to recovery under the allegations in the complaint relating to the first cause of action, for ■ he insists that-the case should have gone to the jury upon the ques-" tion of the right to recover for an installment claimed to be due before the- occurrence of the fire.

He alleges and attempts to prove an absolute sale, and demands judgment as iq an action upon, contract for a specified sum due as a • balance of the consideration. Conceding that there was an item due as an installment under the terms of the conditional sale, it was not due "in the same sense as a part of the consideration for the absolute sale, and the question was properly held for the" jury’s consideration. •

There was no offer ■ or request for amendment of the pleadings, and the variance called for a dismissal..

The plaintiff claims a sale, and there was a failure of proof.. How could she then be entitled to recover upon a cause of action not alleged? The only remaining question is, assuming that the property was the property of the plaintiff at the time of the fire, are'the defendants liable as in a case of loss?

There was no dispute about the fire.’ ’ This court has held in the. case of Hall Safe & Lock Co. v. Peake, 2 City Court Rep. 271, that the risk attends upon the title and not upon possession, where there is no special agreement and none is alleged or proven.

The defendants are not, therefore, liable for that reason.

We have failed to find in the record of the appellant’s brief any grounds for disturbing the determination of the court or jury, and, therefore, the judgment must be affirmed, with costs.

Fitzsimons, J., concurs.

Judgment affirmed, with costs.  