
    Theresa Bannwart, Resp’t, v. The First Bohemian Brewing Co., Impl’d, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 3, 1890.)
    
    Appeal—District courts.
    In an action in a district court to replevin chattels defendant denied having made an absolute sale of them to one S., but a bill of sale to him was shown and it was shown that S. gave a chattel mortgage thereon which was recorded at defendant’s request. Held, that the question being one of fact the judgment could not be reversed by this court unless there was a greater preponderance of evidence than appears in this case.
    Appeal from a judgment of the fourth district court of the city of New York.
    
      Morrison & Kennedy, for app’lt; 8. Mullen, for resp’t.
   BooKSTAVER, J.

The action was brought for the claim and delivery of certain personal property claimed by the plaintiff under a chattel mortgage which was past due. As to the chandeliers -covered by the mortgage, there is no claim whatever that either of the defendants were at any time the owners of them, and consequently the mortgagor Shulte had the right to mortgage or sell them at his pleasure. As to the remainder of the property, the appellant, The First Bohemian Brewing Company, was at one time the owner. On behalf of plaintiff it is claimed that the company •sold these goods to the mortgagor Shulte absolutely, for $500 to be paid in installments of fifteen per cent, of the amount of beer -sold by Shulte as the business went on, and a bill is introduced which goes to corroborate this contention. It is true the defendants deny there was any such absolute sale made, but the evidence shows that subsequently Shulte gave them a mortgage upon these same goods, and had it recorded, as he claims, at their request. At any rate the question was one of fact, and under the well established rules of this court the judgment will not be reversed unless there is greater preponderance of evidence than appears in this case.

Larremore, Ch. J.. and Bischoff, J., concur.  