The judgment entered upon the verdict having been affirmed by the General Term of the Oity Court, we cannot consider the weight of evidence. There is sufficient evidence to sustain the judgment upon a breach of contra.ct.
If it were necessary, and the complaint would permit it, the judgment could even be sustained on the theory that the evidence sufficiently established a cause of action based on false representations. This was done on substantially the same state of facts in Dietz v. Yetter, 34 App. Div. 453. There is no evidence that the plaintiff waived the condition as .to the fire-proof character of the defendant’s warehouse. Moreover, the defendant, as bailee, is not in a position to dispute the title of the plaintiff from whom he received the property. It is well settled that a bailee or agent cannot at law dispute the original title of the person from whom he received the property, though he is at liberty to show that his bailor has parted with his interest in the property subsequent to the bailment or to the delivery to the agent. In the case at bar there is rib pretense of any subsequent parting by the plaintiff with his interest. The case discloses sufficient evidence from which the jury could find the value of the goods destroyed. Rone of the exceptions taken appears to have sufficient merit to call for a reversal of the judgment.
Judgment should be affirmed, with costs.
MaoLean and Leventritt, JJ., concur.
Judgment affirmed, with costs to the respondent.