majority">By the Court, Mitchell, P. J.

This appeal is from an order of the special term, granting a new trial, on the ground that the verdict was against the weight of evidence. The court does not, generally, interfere with the verdict of a jury, unless it is clearly against the weight of evidence. If any case should be an exception this ought to be, as the case was presented to the special term, and to the general term, on former occasions, on affidavits exhibiting substantially the same state of facts as appeared at the trial; and both tribunals considered a case of fraud or of conditional sale, made out, and in that conclusion the judge whose order is now appealed from concurs.

The facts are such that they should be again submitted to a jury. The defendant obtained all his means which he had in business, by advances; and when he commenced his winter or spring dealing in flour and corn, in February, 1850, he owed $4000 or $5000 which he had contracted in the preceding summer, and which was still due, at the trial. Between Feb. 1850, and his failure in April of that year, his purchases amounted to $245,000. He bought the plaintiff’s corn of Mr. Melick on the 29th of March of that year. Melick stated to him that he wanted to sell to some one who could give the cash as soon as the corn was out of the barges ; and expressed his doubt whether the defendant could so pay, and reminded him that he had been buying largely, during the winter and spring. The defendant replied that he had paid for those purchases; that he did not depend on his own resources to pay for the corn ; that he had arrangements with other parties for the pay, and although he was buying a large amount of corn to send abroad, yet he only occasionally took a little interest for himself in the purchases; and that he had arrangements made with a party, then, for the pay for the corn; that he could give the money for the corn just as soon as it was all on board the ship. Melick finally told him *557that if he could assure him that he had the money arranged for, so that he could pay for the corn when it was in the ship, he would send it alongside the ship. And the defendant assured Melick that the money was so arranged for, and that he could have the money as soon as the corn was all on board the ship, and on that condition Melick agreed to deliver the corn. The corn was all delivered on the 2d of April, and a bill sent to the defendant’s store on the same day, for the money. On the 3d he was personally seen and payment demanded, and he said it was steamer day and his parties were very busy getting off their letters, and he could not get the check until after the steamer sailed; that Melick might rely on it early next morning. The next day came, and he said he was ashamed to say that his party had disappointed him, but that Melick might rely on the money before 10 a. m. the next day. Again, on April 5, the defendant made an excuse on account of the death of his father-in-law, and promised that the money should be paid during the day. It was not paid on that day, and his book-keeper gave assurances that it should be paid the next day. The next day, or the business day after, he failed. In the mean time he had obtained advances on this corn, and applied them to other purposes. The conduct of the defendant subsequent to the sale, was evidence of the motive which influenced him to make the purchase, and looks so much like a design to deceive and mislead, that it should be again submitted to a jury. If his representations are to be understood, (as it is insisted the cross-examination shows they should be,) as stating only that he had made arrangements that advances should be made on his corn generally, and such arrangements were in fact made, and he intended when he purchased the corn to pay for it, the imputation of fraud may be effectually repelled. If he meant, as the direct examination strongly tends to show, and his subsequent remarks confirm, that he made the purchases for other persons, who were to pay for the corn, and there is no proof that this was true, then the charge of misrepresentation is made out.

The evidence also shows a sale and delivery conditional on the payment of cash. There is no evidence to contradict this. *558Yet the jury finds against it. If another jury shall infer from any circumstances that the delivery was intended to be a waiver of this condition, and there should be such circumstances as would justify such an inference, it may be conclusive. At present, such circumstances do not appear. If the delivery on board a foreign ship were alone proof of a waiver of the condition, then there could be no sale for cash, of corn to go abroad, without the payment being made before the delivery.

[New York General Term,September 3, 1855.

The question was raised, but not discussed, whether this action would lie, as the goods had been transferred as security to another, and were on board ship, and not under the manual control of the defendant when the action was brought. When this case was before the general term the first time, (8 Barb. 509,) it was held the action lay. And that was the main question then discussed, although the motion was to discharge the defendant from bail. Afterwards, in Merrick v. Suydam, (1 Code Rep. N. S. 212,) a further question was argued, whether the peculiar bail for the return- of the property or the payment of the debt, can be allowed in these actions, even when the action lies, if the property, before suit brought, has passed from the defendant’s hands and control without any intention to evade the process of the court. And it was held that it could not be allowed, as the plaintiff, to obtain such bail, must make an affidavit alleging, in the present tense, that the defendant is in the possession of the property; but the court still held that the action would lie. It may well lie ; as the judgment must be in the alternative, for the return of the property or the payment of its value; and thus the defendant can, if he has not the property, satisfy the other requirement of the judgment, and pay the value.

The order granting a new trial is affirmed, with costs.

Mitchell, Roosevelt and Morris, Justices.]

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