
    (32 Misc. Rep. 736.)
    WESTERN UNION SEWING-MACH. CO. v. SACHS et al.
    (Supreme Court, Appellate Term.
    November 9, 1900.)
    Replevin—Conditional Sale—Default—Modification—Burden of Proof.
    Plaintiff brought replevin for goods sold to defendant under a conditional contract, alleging default in the payments, the whole agreement not being in writing. Payments had been made on an unexplained account, which, if on account of purchase price, would indicate a modification of such agreement, and place defendant in default. Held, that the burden of proof was on plaintiff, and hence, in the absence of a showing wherein there was a modification, he could not recover.
    Appeal from municipal court, borough of Manhattan.
    Action by the Western Union Sewing-Machine Company against Annie Sachs and another to recover certain goods. From a judgment in favor of the defendants, plaintiff appeals.
    Affirmed.
    Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.
    C. B. Plante, for appellant.
    A. Oberstein, for respondents.
   PEE CURIAM.

The burden of proof was upon the plaintiff, and was not sustained. It appears that the whole agreement between the parties was not evidenced by the writing. There was a payment of $2 and one of $10 on an unexplained account. If it was an account of rental, as indicated on Exhibit 6, there was no default shown. If it was on account of purchase price, there must have been a modification of the agreement suggested by Exhibit 6, and, as it does not appear in what respect there was a modification, it cannot be said that the plaintiff was entitled to the property. In addition,, it may be said that there was no evidence of a refusal to deliver.

Judgment affirmed, with costs.  