Opinion
January, 1920.
Nathan S. Jerome (David F. Barnett, of counsel), for appellant.
Wise Ottenberg (Irving S. Ottenberg, of counsel), for respondent.
The defendant auctioneer made no announcement that the goods were not his own. At no time did he reveal the name of the owner, if he were not such. He billed the goods in his own name. We are of the opinion that in such circumstances he must be deemed a seller as the term is used in section 127 of the Personal Property Law. See Meyer v. Redmond, 205 N.Y. 478. It is immaterial that title passed before shipment. Miller v. Harvey, 221 N.Y. 54. As the defendant was a seller, and was authorized by the buyer to ship, he was called upon to exercise the care required of any vendor so authorized. He was under no compulsion to attend to the shipping arrangements. But, having consented to ship, he should have shipped properly, and this he failed to do. Miller v. Harvey, supra.
BIJUR and PENDLETON, JJ., concur.
Judgment affirmed, with twenty-five dollars costs.