FITZGERALD, J.

Plaintiff was the owner of a mare which he delivered to the defendant, an intending purchaser, for the purpose of a preliminary trial upon the agreement that, if the animal proved satisfactory, he (defendant) would pay the agreed price. It is conceded that within the period allowed for the trial the mare was accidentally killed. The action was tried upon written pleadings and the complaint sufficiently alleges causes of action in replevin and conversion and judgment was rendered by the terms of which execution against the person might issue. It was conceded that plaintiff delivered the mare to the defendant so that no unlawful taking was established; and the undisputed evidence is that defendant was neither in possession of the property at the time of the demand nor that he had voluntarily, fraudulently or intentionally parted with the same, and consequently he could not be chargeable with unlawful detention. Sinnott v. Feiock, 165 N.Y. 444. The accidental destruction of the property while lawfully in the possession of a defendant is not a conversion; it may constitute negligence. "The failure to deliver that which is not in being and cannot be delivered furnishes no evidence of an appropriation." Salt Springs Nat. Bank v. Wheeler, 48 N.Y. 492. Irrespective of the character of the judgment rendered, the record conclusively shows that the question of negligence was not litigated, the learned trial justice having stated: "All the plaintiff has to make is a demand which is conceded and he makes out a cause of action in conversion."

GILDERSLEEVE and GOFF, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.