Opinion
March, 1907.
The evidence is sufficient to warrant a finding that although there was originally an absolute sale of the goods in question by the plaintiff to the defendant Stratton, it was subsequently agreed between them that the plaintiff should be reinvested with the title thereto, and the defendant Stratton should hold the goods on consignment and remit to the plaintiff the proceeds from the sale thereof. It was, therefore, erroneous to direct a verdict against the plaintiff, since the codefendant Tucker, the trustee in bankruptcy of the defendant, took no greater interest in or better title to the goods than Stratton had, save as he also represented the creditors of Stratton. Upon that subject the evidence is entirely silent, except as it may be inferred from the fact of bankruptcy upon the part of Stratton. Even if it be assumed that there were creditors represented by the trustee in bankruptcy who could have attacked the plaintiff's title to the goods upon the ground that there was not such an immediate and actual change in the possession thereof as section 25 of the Personal Property Law requires to effect a valid sale as against such creditors, the facts and circumstances were such as to require the submission of that question to the jury. The judgment and the order denying the motion for a new trial should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.