
    William A. Higgins, Respondent, v. Isaac Cohen, Appellant.
    Appeal from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the city of Eew York, first district, borough of Manhattan.
    Herman Joseph (Arthur Furber, of counsel), for appellant.
    Lester & Mettler, for respondent.
   Leventeitt, J.

The judgment in this case cannot be upheld a& the plaintiff failed to prove a cause of action.

While the record is unsatisfactory these facts clearly appear. The plaintiff was engaged in business as a packer of dried fruit. He received from the defendant, carrying on business as I. Cohen and Brother, 316 bags of peaches which he packed in 1,027 boxes.

The goods when packed were held subject to the order of the defendant who thereafter, through his duly constituted agent, notified the plaintiff that one Ensign had become the owner.of' the fruit. The plaintiff recognized the latter’s ownership and on the trial introduced a letter addressed to him, signed by Ensign,, and containing the following language: “ You will honor all orders given by The Fruit Auction Company, for the delivery of' the dried fruit in your store which were packed for I. Gohen and Brother.”

The Fruit Auction Company issued orders upon the plaintiff' for the delivery of 1,057 boxes of peaches, which orders the-plaintiff filled. He now seeks to recover from the defendant the-value of the thirty boxes delivered in excess of the quantity which had been packed for the defendant.

Where these thirty boxes came from is enveloped in mystery,, but it is plain on the proof presented that the defendant cannot be-charged for their value.

The defendant’s connection with the transaction ceased upon the transfer of the ownership to Ensign and he in turn authorized delivery only of such goods as had been packed for the defendant.

.While on proof that Ensign had collected for the excess, an action for money had and received might lie against him, no liability attached to the defendant unless it be shown that he had reaped the benefit of the over-delivery. So far from this being the case, the plaintiff’s proof shows that the defendant had transferred to Ensign only 1,027 boxes.

The plaintiff testified unequivocally that he discovered the shortage when the excessive order was lodged, but that he nevertheless filled it. He was in a position to protect himself by calling the attention of Ensign or of the defendant to the fact, but failing to do so, the delivery was made at his peril, and notice given several months after was unavailing. No attempt was made to justify, through custom or agreement, the application to the excessive order of goods other than those of the defendant.

There are technical defects in the record, but we think that this is eminently a case in which, under the provisions of section 3063 of the Code of Civil Procedure, they should be disregarded.

The judgment will be reversed.

Freedman, P. J., and MaoLean, J., concur.

Judgment reversed and a new trial ordered, with costs to appellant to abide event.  