119 Misc. 219 | N.Y. Sup. Ct. | 1922
The plaintiff, as vendor, seeks to recover possession of a second-hand soda fountain, and apparatus connected therewith, sold by it under a contract of conditional sale, and the defendants claim title thereto through a purchaser under a chattel mortgage foreclosure, a mortgage on the property having been given by the vendee.
The defendants assert their title to the property is superior.
Also the defendants assert that the plaintiff is not entitled to possession of the property as it had elected to sue the makers upon the notes which they gave under the terms and conditions of the contract. Twelve of the notes were unpaid, and an action was instituted to recover the aggregate amount thereof, which has been prosecuted to verdict.
It cannot be seriously contended that defendants were purchasers of the property in good faith as against the plaintiff. It would not seem that a conditional vendee, being without title, has a mortgageable interest in the property through which a good title can be obtained by a purchaser with at least constructive notice, without payment of the purchase price. Moreover, it appears the chattel mortgage expressly provided that the same was given subject to the lien of the plaintiff; also it was stipulated upon the trial that the property was sold subject to the lien and bid in by one. of the mortgagees, who sold and transferred all his interest to the defendants. Such interest would only become absolute upon payment of the unpaid purchase price due the vendor. Furthermore, I find no allegation in the answer that defendants were purchasers in good faith and purchased the same for value without notice of the alleged claim of the plaintiff. No proof of the fact of defendants’ lack of notice was offered upon the trial other than the failure to refile. It was said in Flickinger v. Glass, 222 N. Y. 404, 410: “ Even though there was no fraud, the mortgage yields to the lien unless it was taken without notice, actual or constructive, of the rights of the vendee; and the burden of proof is with the defendants to show that notice was lacking. (Seymour v. McKinstry, 106 N. Y. 230.)”
The principal defense urged is that plaintiff having brought an action at law to recover the amount unpaid, as represented by the promissory notes given by the original purchasers to plaintiff under the contract of conditional sale, resulted in an abandonment of the lien under the contract and an election of remedies by the plaintiff, barring a recovery of the property by this action of replevin. It was conceded a demand for the property was duly made and refused by the defendants before the action was instituted.
There would no longer seem to be any reason for doubting the right of a creditor to enforce his claim by more than one remedy if the same are not inconsistent. Ratchford v. Cayuga Co. Cold Storage & W. Co., 217 N. Y. 565; followed in Wiedenback-Dobelin Co. v.
Under the contract here presented there would seem to be no reason why the plaintiff should be held to have abandoned its right to recover possession of the property, for which concededly full payment has not been made, simply because it endeavored to coerce the original debtors to pay, by action brought against them, the amount unpaid on their notes, which, if realized upon, would necessarily have resulted in a benefit to the defendants. The cases mentioned by Cardozo, J., in the Ratchford case (p. 569) (Shipley Construction & Supply Co. v. Mager, 165 App. Div. 866; affd., 221 N. Y. 679, and Whitney v. Abbott, 191 Mass. 59, 63)
I believe plaintiff’s situation is like that of a secured creditor in proceeding against his debtor to enforce the payment of a just claim, which is not inconsistent with his pursuit of any other proper remedy against a third person who wrongfully converts or destroys his security. 20 C. J. 18; Boles v. Missouri Valley El. Co., 183 Iowa, 517. In Durr v. Replogle, 167 Penn. St. 347, 352, the court, speaking of two remedies which were being followed growing out of a conditional contract of sale, one to recover the amount due on a judgment which had been taken, and the other to recover possession of property, says: “ The two remedies given by the agreement are not inconsistent with each other, and the partial pursuit of the one does not therefore preclude a resort to the other. The usual rule must prevail, that a party can have any number of different remedies so long as he secures but one satisfaction.” Also it was said in Ratchford v. Cayuga Co. Cold Storage & W. Co., supra, 569: “ Of course, when the property has been retaken, the right to receive payment is at an end.”
I have, therefore, reached the conclusion that judgment should be rendered in favor of the plaintiff, with costs, and appropriate findings may be submitted therefor.
Judgment accordingly.