
    James Shields, Resp’t, v. John Bush et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 16, 1894.)
    Replevin—Sale.
    On the sale of a cab in exchange for an old one and balance in notes, with reservation of title until such notes are paid, the vendor cannot, upon injury to the old cab, seize and sell the new cab against the vendee’s protest, after the payment of said notes.
    
      Appeal from a judgment entered on’ a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      George S. Hastings, for app'lts; Henry T. Terry, for resp’t.
   O’Brien, J.

The action was brought for the recovery of a hansom cab, of the alleged value of $400, or the value thereof in case delivery could not be had. The plaintiff had arranged for the purchase of the carriage in question from a carriage manufacturer doing business under the name of M. Armstrong & Co., and by the terms of the contract was to pay the sum of $600. In part payment plaintiff gave Armstrong & Co. a bill of sale of an old cab which he owned, at an agreed valuation of $260, and, in addition, gave notes to the amount of $340. These were in the sum of $25 each, and payable from month to month; spread over a period of fourteen months. Plaintiff took from Armstrong & Go. a bill of sale of the new cab, which by its terms provided that this should remain the property of Armstrong & Co. until the notes were paid. It is conceded that plaintiff paid in cash the sum of $361-55,which was equal to the $340 covered by the notes, with interest for deferred payments. It appeared upon the trial that the old cab, which by the bill of sale was to be subject to the order of Armstrong & Co., remained with the plaintiff, and was not delivered, because not called for, until after it was accidently broken by a person who, wishing to purchase it, had taken it from the stable. Though repaired at the plaintiff’s expense, the defendants refused to receive it; and the real question in this case grew out of the dispute between the parties as to what action was to be taken in view of the claim of Armstrong & Co. that the injury to the old carriage had lessened its value. Armstrong & Co. claimed that in this situation of affairs, upon their refusal to take possession of the old cab, anew agreement or arrangement was entered into1 between that firm and the plaintiff, by which plaintiff agreed to keep the old cab and pay the $260, the amount agreed upon as its value; and that in the mean time the payments made by plaintiff would be applicable to reducing this indebtedness, deferring the payment of the notes until this amount was paid, subject to Armstrong’ & Co.’s right to take the new hansom and sell it if plaintiff should not pay the notes. Plaintiff denied the making of any such agreement, and insisted that the payments were made upon the notes, and not to cover the price allowed for the old cab. The questions as to whether any such agreement was made, andas to the rule relating to the appropriation of payments, were fully and clearly presented by the trial judge in his charge, to which no exception was taken; the only exceptions in the case being to the refusal of defendant’s motion to dismiss the complaint, and the denial of the motion to set aside the verdict and for a new trial. The question whether any new or substituted agreement was made between the parties was properly, upon conflicting evidence, presented to the jury, and the refusal to dismiss the complaint was therefore correct. The burden was upon the defendants of showing such new agreement; and it is conceded that, unless it was proven, the defendants had unlawfully wrested the new hansom, which plaintiff had purchased and fully paid for, from his possession. Under the original agreement, Armstrong & Co. were vested with the title to the old cab, and such title was not affected by their failure to take actual possession thereof. If, before they took such actual possession, it was injured through plaintiff’s fault, their remedy would be for damages—and not by seizing the new cab and selling it—against the protest of plaintiff, who, by the terms of the bill of sale, became the owner upon tne payment of his notes. The jury having resolved this conflict in plaintiff’s favor, we see no reason for interfering with their conclusion.

The only serious question presented upon this appeal is as to the amount fixed as the value of the new cab, in the absence of any very certain or definite testimony as to its value at the time of seizure. Upon this question of value it was-shown that the cab was purchased from Armstrong & Co., under whom defendants' acted, for $600, and that this was about $50 less than its original price ; that it was almost new when purchased by plaintiff, who thereafter spent $25 in improving it; that it had but ordinary use, had met with no accident, and, though 20 months had elapsed between the date of the purchase and the time of seizure, it was in good repair when taken from plaintiff, who statqd that it was substantially as good as when he bought it. On the other hand, it was shown that the cab, when sold at auction after seizure, realized only $120. The jury fixed the value at $340. Al- ■ though we think the evidence in support of the value fixed by the jury was slight, still is not so insufficient that the verdict can be regarded as excessive, or without some basis of support. The history of the carriage, its use, and its condition, were before the jury; and, considering the evidence given by the plaintiff as to value, and the knowledge which ordinarily is possessed by jurymen about carriages, we do not think that, where the plaintiff has presented the best evidence which was in his possession, we should disturb their verdict.

The judgment and order therefore should be affirmed, with costs.

All concur.  