Toro v. Horn ( 1915 )

BIJUR, J.

Plaintiff sued defendant, a city marshal, in replevin for certain bags of flour seized by him by virtue of an execution in favor of some third parties against one Ferdinando Castaldo. Plaintiff’s claim is that she sold the flour seized, not to Ferdinando Castaldo at all, but to C. P. Castaldo, the latter’s wife, and under a memorandum expressed in a receipt reading:

‘Tt is strictly understood that all flour is delivered on consignment, and is not sold until paid for.”

[1] Defendant urged below, on his motion to dismiss, that since plaintiff admitted that she knew that the flour was being continuously used by Mrs. Castaldo by way of making it up into bread in a bakery, that such use was inconsistent with the notion of the retention of title to the flour in plaintiff, and that consequently plaintiff, having parted with title to the flour, could not maintain the present action. Defendant appellant’s contention in this respect is clearly sustained by authority. Scherl v. Flam, 129 App. Div. 561, 114 N. Y. Supp. 86; Cook v. Gross, 60 App. Div. 446, 69 N. Y. Supp. 924, and cases there cited.

[2] Defendant urges also that the Municipal Court, under section 139 of the Municipal Court Act, is without jurisdiction to entertain the present suit. This point is well taken. See Diamond v. Rosenblatt, 83 Misc. Rep. 57, 144 N. Y. Supp. 754; Jacobs v. Columbia Storage Co., 55 Misc. Rep. 268, 105 N. Y. Supp. 276; Ginzburg v. De Silvestri, 42 Misc. Rep. 530, 86 N. Y. Supp. 89.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.