
    (52 Misc. Rep. 661)
    LEUBUSCHER v. BAILEY.
    (Supreme Court, Appellate Term.
    February 11, 1907.)
    Trespass—Trover and Conversion—Evidence—Suiticiency.
    In an action for damages from the hauling away of dirt from plaintiff’s premises in wagons bearing defendant’s name, evidence examined, and held insufficient to overcome a presumption that the wagons were in use in defendant’s service and on his account, so as to relieve him from liability therefor.
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
    Action by Frederick C. Reubuscher against George R. Bailey. From a' judgment for defendant, plaintiff appeals. Reversed, and new trial . ordered.
    Argued before GIRDERSREEVE, MacREAN, and AMEND, JJ.
    
      Edward Miehling, for appellant.
    Herrick, Barren, Chase & Pennie, for respondent.
   MacLEAN, J.

Whether the cause herein be treated as one for trespass or for conversion, facts in support were testified to by the plaintiff and a disinterested witness, viz., that wagons bearing the name of the defendant and containing dirt came from the premises of the plaintiff or were being filled thereon; and, though the defendant testified that he never authorized any person in his employ to go upon and take material from the premises of the plaintiff, this, in the absence of. proof separating ownership from possession, was insufficient to overcome the presumption “that the wagon and horses of the defendant were in use in his service and on his account” (Norris v. Kohler, 41 N. Y. 42, 45), aided in no small measure by proof that the defendant at the time was there engaged under contract in regulating and grading Walton avenue. Furthermore, being an interested witness, denial of authority by the defendant was by no means conclusive, and of knowledge particularly ; his foreman and timekeeper, who he said would not permit, and who would inform him of the fact, being present, but not called. In view of the evidence and of justice, the cause should be retried.

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