Kellogg v. Hewitt — 133 Misc. 609

Majority

p. 609

Harry B. Kellogg and Others, Appellants, v. Frank Hewitt, Respondent.

Supreme Court, Appellate Term, First Department,

February 19, 1929.

William J. Carey, for the appellants.

Herbert Goldmark, for the respondent.

The question presented on this appeal is whether title had passed to defendant. We are of opinion that it had. The word “ delivered ” in the contract “ price to be $1. per bundle delivered ” in our opinion related solely to the price. This seems to be demonstrated by the fact that the buyer, defendant, agreed to pay the freight. At best the language of the contract might leave the question in doubt. In substance, however, the transaction is governed either by section 127 of the Personal Property Law (Sales of Goods Act) or section 100, subdivision 4 thereof (as added by Laws of 1911, chap. 571). The fact that the goods were

p. 610

shipped to the order of the plaintiff will not affect the result under section 101, subdivisions 1 and 2, and section 103, paragraph (a). (See Groat v. Gile, 51 N. Y. 431 , 436; Sawyer v. Dean, 114 id. 469 .)

Nor do we think that our interpretation of the effect of the agreement of sale is affected in any degree by the transaction in reference to a claim against the railroad. Even on defendant’s own version that was an amicable arrangement to facilitate the presentation of that claim. It had no bearing upon the existing legal relations of the buyer and seller.

Judgment reversed, with $30 costs, and judgment directed in favor of plaintiffs for $846, with interest and costs.

All concur; present, Bijur, Peters and Frankenthaler, JJ.

Cases cited

Groat v. Gile 51 N. Y. 431 N.Y. Comm'n App. at 436 p. 610