Opinion by
William W. Porter, J.,It may be said generally that goods of strangers, consigned to an agent to be sold on commission, are not liable to distress for rent due by the agent. The appellant contends that this rule is applicable to the present controversy. The facts exhibited by the case stated are in epitome as follows: Kolhoff rented certain premises from the defendant and conducted therein an ordinary retail shoe store. The plaintiff sent him *451certain shoes “ on consignment.” Kolhoff agreed to return to the plaintiff the money for the goods after they were sold,— the amount returned to be the invoice price at which the plaintiff usually sold the same line of goods to other customers. Kolhoff, it was agreed, was to have all he got for the goods over and above the invoice price, as his “ commission.” The transaction was entered in the plaintiff’s sales book, as in the case of other goods sold, save that the words “ terms as agreed ” were appended to the entries. The landlord had no knowledge or notice that any part of Kolhoff’s stock was claimed by third parties until the constable’s levy.
The arrangement described did not protect the goods from levy. There was no right reserved to take back the goods. It was a delivery of the goods at a certain price, Kolhoff to make his profit in what he received over such price. As to third parties there was nothing to indicate that Kolhoff was an agent for the sale of the goods on behalf of the plaintiff. There was no provision that he should account to the plaintiff for the amount of his sales. He might sell at any price. If in excess of the invoice price, he profited. If for less, he lost. He was in no sense a commission merchant. The taking and selling of goods on commission were no part of his usual business.
The goods in dispute were to be sold in the usual course of his business as a retail shoe dealer and their cost remitted to the plaintiff. The transaction was a sale as to creditors of Kolhoff ignorant of any reservation of lien in the vendors. The defendant was such a creditor and the goods were therefore subject to levy.
The judgment is affirmed.