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To be argued by,
H. WILLARD GRIFFITHS.

New York Supreme Court.
APPELLATE DIVISION -SECOND DEPARTMENT,

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This is an appeal from a judgment of the County Court of Nassau County, which affirmed a judgment rendered against the defendant and in favor of the plaintiff by Walter R. Jones, Esq., a Justice of the Peace of the Town of Hempstead, Nassau County The action was brought by plaintiffs to recover a sum of money alleged to be due to them for goods sold and delivered to defendant. Defendant does not deny the purchase, but does deny delivery to him and complance with the terms of the agreement and upon that one point is this appeal based.

Plaintiff's testimony is to the effect that a salesman in their employ called on defendant at his store in Hicksville and solicited an order from him for a quantity of the merchandise manufactured by plaintiff, to wit, neckwear. Defendant gave the order and a memorandum of the sale was written out by plaintiff's salesman, a copy of which was given to defendant (minutes, p. 2). The original order is in evidence as plaintiff's Exhibit 1. From that slip it can be seen that certain merchandise was sold to A. Katz of Hicksville, Nassau Co., N. Y., that it was to be delivered to him at Hicksville and shipped vià American Express and that transportation charges were to be paid by the seller, in other words, transportation charges were to be prepaid. Plaintiff's further testimony is to the effect that on or about May 29th, 1920, Charles Loebel personally delivered the package addressed to defendant at Hicksville, to a Branch Post Office in the City of New York (minutes, p. 5) and paid the transportation charges thereon. This was a

. violation of the terms of the order for the goods should have been shipped by the American Express. He also says he insured the package, but there is a doubt raised on this point, for he testifies (minutes, p. 9) that when he shipped this package he shipped several others at the same time and only received one receipt for the entire lot (plaintiff's exhibit 2), but the question of insurance is immaterial in this case in view of the rule that must be applied in deciding it. Plaintiff has absolutely no further knowledge of the delivery of the goods to defendant at Hicksville other than has already been stated. They know the order was received and the merchandise turned over to the Post Office Department for delivery, transportation charges prepaid, further than that they know nothing. As against this, defendant testifies positively that he never received the merchandise from plaintiff. This testimony is uncontradicted and must be deemed to be true (minutes, p. 12). He further testifies that after a certain period of time had elapsed he received a statement for the merchandise from plaintiff and immediately called on plaintiff and notified them that he had not received the merchandise (minutes, p. 13). That defendant did call on plaintiff and state that he had not received the merchandise is corroborated by plaintiff's own witness (minutes, p. 17), and defendant's further testimony that he inquired at the Post Office in Hicksville for the package, but was informed by the Postmaster that it had not been received (minutes, p. 14) must be read in his favor for it is uncontradicted and was not objected to.

Here we have a great weight of proof to show that the merchandise was shipped by parcel post and not by American Express and was never delivered to defendant at Hicksville, the place mentioned in the order slip. As against this plaintiff offers no proof whatsoever to show that the merchandise was delivered to defendant at Hicksville, nor does he pretend to offer any proof on that point, resigning himself to the belief that the delivery to the Post Office Department in New York was delivery to the defendant and it might have been so, were it not for the Personal Property Law of the State of New York, which clearly defines the exact situation which exists in this

case.

POINT ONE.

If a contract to sell requires the seller to deliver the goods to the buyer, or at à particular place or to pay the freight or cost of transportation, to the buyer or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.

case.

The foregoing statement is really a quotation from the statute but applies most aptly to this

The memorandum of sale shows that the merchandise was to be shipped to A. Katz, Hicksville, L. I., N. Y., via American Express. The testimony is uncontradicted that the goods were shipped by parcel post and defendant never received the merchandise either at Hicksville, or any other place and under the rule of law set forth above, title thereto never vested in him but always continued in the seller who cannot recover the value thereof from the defendant but must seek restriction from the carrier. The following are the provisions of the Personal Property Law (C. L. Cháp.) which apply to this case: Section 127 of the law provides as follows:

Sec. 127. Delivery to a carrier on behalf of buyer.

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