
    Abel A. Crosby et al., Resp’ts, v. The Pres’t, etc., of the Delaware & Hudson Canal Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    Conversion—Bailment or sale.
    In an action for conversion the main question was whether the vendors of plaintiffs were bailees or vendees of the property in question. They were engaged in building boats for defendant, which furnished the lumber therefor and declined to furnish it for any other purpose. At first the lumber was paid for in cash, but subsequently it was the custom to allow the price thereof on the price of the boats when completed. Certain lumber was delivered to them with a bill of items, which they sold to plaintiffs. Seld, that whether the transaction between defendant and plaintiffs’ vendors was a bailment or sale was a question for the jury.
    (Following Crosby v. Pres’t, etc., D. & H. C. Co., 119 N. Y., 334; 39 N. Y. State Rep., 453.)
    Appeal from a judgment in favor of the plaintiffs entered upon the verdict of a jury at the Ulster county circuit, and also from the order denying a motion made upon the minutes for a new trial
    The action was for damages for the alleged wrongful taking oy the defendant of a quantity of lumber, which G. & E. Hamden had sold the plaintiffs in part payment of a past indebtedness. The defendant had furnished the lumber to the Harndens to be used in building two canal boats for the defendant. The main question is whether the Harndens were the vendees or bailees of the lumber.
    The Harndens were boat builders at Aligerville on the line of the defendant’s canal. They had never built a boat for anyone else than the defendant, but were repairers of other boats. The defendant kept lumber specially adapted for building the boats it required, not for sale generally, but only for use by boat builders, in building boats for defendant.
    The Harndens built a boat for the defendant in 1878, and bought some of the lumber from defendant, paying cash for it. Afterwards they ordered and received lumber from the defendant and built boats for it, using the lumber upon such boats and giving defendant receipts for its price as part payment upon theprice of the boats. The defendant had declined to furnish the Harndens with lumber except for use in constructing boats for defendant. On the 8th of November, 1882, the defendant wrote to the Harndens as follows : “ If you wish to build two boats during the coming winter for delivery upon opening of navigation next spring, the company will take them at $1,200 each, subject to inspection and approval by the company inspector.” The Harndens accepted the proposition, and November 21st following sent to defendant’s superintendent a written order: “Please send us pine 2x7 4,000 feet,” etc., specifying other kinds and quantities. The defendant forwarded the lumber by boat to the Harndens with following bill:
    “ Bondout, N. Y, Nov. 24, 1882.
    “Messrs. Gr. & B. Hamden:
    “ To The Del. & Hudson Canal Co., Dr.
    
    “1284 feet oak planed a $53. $68.05,” and two other items, total $412.77.
    The parts of the bill in italics were printed, the rest written.
    When the Harndens received the lumber they intended to use it in building the two boats for the defendant, but they became insolvent, did not build the boats, and sold the lumber to the plaintiffs, from whose possession the defendant subsequently took it without permission.
    
      F. L. Westbrook, for app’lt; A L. Stebbins, for resp’ts.
   Landon, J.

The court of appeals reviewing this case as it appeared from a former trial held that it was a question for the jury whether the transaction was a bailment or a sale. 119 N. Y., 334; 29 N. Y. State Rep., 453. The case now presents the same facts which the court of appeals commented upon, some as indicating a bailment, others as indicating a sale. There are a few additional facts, but some tend to support the one conclusion, and others the other.

Wc discover no error in the rulings of the trial court to the prejudice of the defendant.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  