
    David R. Crounse, Appellant, v. Alfred Schrimpton & Sons, Limited, Respondent.
    (City Court of New York
    General Term,
    October, 1894.)
    Defendant sold certain goods to the plaintiff and sent them by an express company, but plaintiff refused to receive them. Defendant thereafter recovered judgment for the purchase price, which was paid. Plaintiff then inquired as to the whereabouts of the goods of defendant’s manager, who refused to give the information. Held, that upon payment of the judgment title to the goods was vested in the plaintiff and he was entitled to possession thereof, and that defendant was under an obligation either to deliver them or tell him where they were.
    Appeal from a judgment entered at a trial term dismissing the plaintiff’s complaint.
    
      J. A7". Miller, for appellant.
    
      O. JE. Miller, for respondent.
   Ehrlich, Ch. J.

The complaint alleges that the defendant (a corporation) entered into an agreement whereby it agreed to sell and deliver to the plaintiff, at 601 Tenth avenue, three great gross papers of pins, for which the plaintiff was to pay $162; that the plaintiff paid for the pins, and that the defendant, after demand, refused to deliver' them or return the money.

The defendant admits the agreement of sale, and sets np that it delivered the pins to Dunlap’s Express Company for delivery to the plaintiff; that the express company delivered the pins at the store of the plaintiff, but the latter refused to receive them; which goods, the defendant believes, are now held by the Dunlap Express Company subject to the plaintiff’s order.

For a further defense, the defendant alleges that, in an action brought in the First Judicial District Court by it against the plaintiff, the defendant, on May 23,1893, recovered judgment against the plaintiff for the purchase price of the pins.

Upon the trial of this action the judgment of the First Judicial District Court was admitted in evidence, and it was also conceded that it had been fully paid and satisfied. It also appeared in evidence- that, after paying the judgment, the plaintiff heard nothing from the defendant about the pins; that on June 14,1894, he went to the defendant’s place of business, saw its manager, and asked him to tell him where the pins were, and that the manager refused to give him this information.

At the conclusion of the testimony defendant’s attorney moved that the complaint be dismissed, whereupon the court directed the jury to find a verdict for the defendant, to. which direction plaintiff’s counsel excepted. We think this was error.

The judgment in the First Judicial District Court simply established’ that the 'defendant, having tendered the pins to the plaintiff, was entitled to the purchase price. When the plaintiff paid that judgment the title to the pins became vested in him. He was entitled to their possession, and the defendant was under an obligation either to deliver them to him or to tell him where they were, so that he could get possession of his property.

The motion to dismiss pointed out no specific failure of plaintiff’s proof, and it was error to direct a verdict in favor of the defendant.

The plaintiff made out a case calling for some'explanation from the deferidant. Hone was offered.

For these reasons the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hewbüboeb, J., concurs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  