
    Charles Millang, Respondent, v. William H. Donohoe, Appellant.
    Second Department,
    April 24, 1908.
    Principal and agent — consignment of goods for sale — liability of agent.
    There can be no recovery as for goods sold when it appears that they were received by the defendant on consignment and he has neither sold nor withheld the goods, but merely retains them subject to the plaintiff's orders without asserting title or right to possession other than that derived from the consignment.
    
      Appeal by the defendant, William H. Donohoe, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff rendered on the 13th day of December, 1907.
    
      I. N. Jacobson, for the appellant.
    
      Baggott c& Byall, for the respondent.
   Per Curiam :

As to the first cause of action the evidence in this case, even that for the plaintiff, indicates that the boxwood, or at least a large part .thereof, was received on consignment. Upon the proof in this case the plaintiff cannot recover the price for that part if it was neither sold by the defendant nor withheld by him, but was held by him subject to the plaintiff’s orders without assertion of any claim of title or right of possession save that derived from such consignment. As to the second cause of action it- is admitted that the defendant owes $50 for the horse, and whether this is due or $100 is due can more cleazdy be determined upon the new tidal. As to the third cause of action it appears that in any event the assignor of the plaintiff was entitled to the earnings of the horse. If the earnings of the wagon when drawn by the horse belonged to the plaintiff, or if the earnings of the team belonged to -the plaintiff, that can be established upon the new tidal and the complaint may be amended accordingly and should be so amended without terms.

The judgment is reversed and a new tidal is ordered, costs to abide the event.

Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  