
    Frederick C. Leubuscher, Appellant, v. George L. Bailey, Respondent.
    Municipal Courts — Review — Questions of fact.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Few York, eleventh district, borough of Manhattan.
    Edward Miehling, for appellant.
    Herrick, Farren, Chase & Pennie, for respondent.
   MacLean, J.

Whether the cause herein be treated as one for trespass or for conversion, facts in support were testified to by the plaintiff and a disinterested witness, viz., that wagons bearing the name of the defendant and containing dirt came from the premises of the plaintiff, or were being filled thereon; and, though the defendant testified that he never authorized any person in his employ to go upon and take material from the premises of the plaintiff, this, in the absence of proof separating ownership from possession, was insufficient to overcome the presumption “ that the wagon and horses of the defendant were in use in his service, and on his account” (Norris v. Kohler, 41 N. Y. 42, 45), aided in no small measure by proof that the defendant at the time was there engaged under contract in regulating and grading Walton avenue. Furthermore, being an interested witness, denial of authority by the defendant was by no means conclusive, and of knowledge particularly, his foreman and timekeeper, who he said would not permit and who would inform him of the fact, being present but not called. In view of the evidence and of justice the cause should be retried.

Gildebsleeve and Amehd, JJ., concur.

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