This is an appeal, by the defendant, from a judgment entered upon the verdict of a jury and also from an order denying his motion for a new trial.
The cause of action being for conversion required that plaintiff, in order to succeed, should prove ownership of the goods in question and that title thereto remained in him. The goods, it seems, consisted of some 3,000 cigars, which had been sold or delivered by plaintiff to one Beyer, who' then sold them, by bill of sale, to the defendant, without notice of any claim or lien. Clearly the *444■defendant was an outsider or stranger to the transaction, and the plaintiff was bound, therefore, to prove legal title to the property — the burden was upon him to establish that fact. Examination of the case and papers on appeal does not disclose sufficient evidence establishing title in the plaintiff, nor identity, or possession in the defendant at the time when demand was made.
It is claimed that the defendant was an innocent purchaser for value, and we think that error was committed upon the trial, first, in not dismissing the complaint because of the failure on the part of the plaintiff to establish his case by a fair preponderance •of evidence; second, because of error in allowing testimony immaterial, irrelevant, and not binding upon defendant.
A point is made that the alleged agreement between the plaintiff and Beyer was void as against the defendant under the Statute of Frauds or Conditional Sales. Act of 1884, chap. 315. If this contention be successful, it follows that the law, although repealed in 1897, was applicable to the plaintiff’s agreement in the year 1893; and the plaintiff was bound to show a conditional sale and the filing of the paper as provided by that law, if he desired protection thereunder.
It follows that defendant, an innocent purchaser, without notice, actual or otherwise, of a conditional sale between plaintiff and Beyer, was not bound by such matter, unless filed in the register’s office.
The evidence does not disclose, and no claim is made, that plaintiff complied with the act, and, therefore, we think that, so far as defendant is concerned, the agreement between plaintiff and Beyer, was void, and that the defendant, a purchaser in good faith, and without notice, obtained a good title (Comer v. Cunningham, 77 N. Y. 391), and was entitled to a dismissal of the complaint.
Without considering the numerous charges of the appellant, ■concerning alleged errors of the learned court below in charging the jury, we pass on to say that the judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.
Conlan and Scotchman, JJ., concur.
Judgment and order reversed, and new trial ordered, with costs to abide event. ' -