#### Luvigia Fierro, Respondent, *v.*Markus Schnurmacher, Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Conversion — Sale under chattel mortgage — Who authorized sale question for jury.

Where in an action for the conversion of plaintiff’s horse and wagon, sold under a chattel mortgage which she had never signed, the only 'question is whether the marshal who made the sale, was acting under the instructions of the defendant or of his brother, the alleged mortgagee, the case is properly sent to the jury.

(MacLean, J., dissented.)

Appeal by the defendant from a judgment of the City Court of the city of Few York, entered in favor of the plaintiff upon the verdict of a jury, and from an order denying a motion for a new trial.

Osborne & Hess (James J. Fitzgerald, of counsel), for appellant.

Palmieri & Wechsler, for respondent.

Scott, J.

The only question that could under any circumstances merit consideration upon this appeal is whether or not the verdict is against the weight of evidence, for clearly the learned justice was right in refusing to dismiss the complaint. The plaintiff’s horse and wagon were sold under a chattel mortgage which she had never signed. Some one, therefore, was guilty of a conversion and the only question in the case is whether the marshal who made the sale was acting under the instructions of the defendant, or of his brother, one Lipp Schnurmacher. Concedely it was the defendant who sold the horse and wagon to plaintiff’s husband, as security for the price of which the mortgage ivas given. Defendant now says that the horse he sold belonged to his brother, but he does not say that he mentioned that, fact at the time of sale. The mortgage was made to Lipp *602Schnurmacher. He was not produced as a witness at the trial. The fact that he was named as mortgagee and the other fact that the auctioneer paid him the money realized upon the marshal’s sale are not conclusive that it was he who instructed the marshal to make the sale. Two witnesses who were called know who instructed the marshal to make the sale. They are the defendant and the marshal. If Lipp Schnurmacher had directed the marshal to sell the property it would have been easy for them to have said so. But neither of them did say so, and the defendant does not deny that he gave the instruction. The question at issue was clearly and fairly presented to the jury and we should not, in my opinion, disturb the verdict.

Dügeo, J., concurs.

MacLean, J.

(dissenting). The plaintiff brought action and recovered judgment, upon the verdict of a jury, against the defendant for the alleged conxrersion by him" of a horse and xvagon, claimed to be the property of the plaintiff. At the trial, and after the parties herein had rested, the defendant moved to dismiss substantially for failure of proof of any act of conversion by him committed, and duly excepted to the denial thereof. Likewise he moved to set aside the verdict on the ground, among others, that it was against the. evidence and the weight of the evidence, and excepted to its denial. Of the connection on part of the defendant with the alleged wrong, evidence there is none, beyond the statement by the husband of the plaintiff that, *“*on or about the; 14th day of May, 1904, Mr. Schnurmacher came with the sheriff and he took everything xvith him * * * Mr. Schnurmacher went to the stable with the marshal when this property xvas seized,” pointing at the time to the defendant himself. Against this ambiguoxis statement the evidence preponderates that the property xvas seized by the marshal and sold by another. Under the determination of the Court of Appeals in Rosenstein v. Fox, 150 N. Y. 354, 361, “ the appellant’s exceptions are properly before us, notwithstanding the absence of a certificate that *603the case contained all the evidence.” Therefore, the judgment must be reversed and a new trial ordered.

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

Judgment affirmed, with costs.