223 A.D. 511 | N.Y. App. Div. | 1928
The plaintiff has obtained a judgment awarding bim the possession of a certain automobile known as a Buick sport roadster, together with damages for its detention. The defendant questions the validity of this judgment on the grounds, first, that the plaintiff was not the owner of the car; and, second, that even if he was the owner, he was estopped by his conduct from asserting such ownership against the defendant.
The plaintiff in 1922 and 1923, when the occurrences took place out of which this action arose, was engaged in the automobile business in the village of Bath, Steuben county, N. Y. In the spring of 1922 he sold this Buick sport roadster to James Bauder. Early in December, 1922, Bauder brought the car to plaintiff’s garage, directed plaintiff to put it in condition to sell and to try to sell it. Plaintiff did not succeed in making a sale. About the end of January, 1923, Bauder asked plaintiff
That spring there was a man about Bath named Miles Palmanteer. Though he was not employed by the plaintiff, he was much at his garage, gave a hand to the employees at times, sold some gasoline at the delivery pump, attempted to collect some bills for the plaintiff and drove the Buick sport roadster a few times with plaintiff’s permission. He talked with plaintiff about purchasing the car, but this came to nothing. Early in May, Palmanteer asked the plaintiff to let him take the roadster to Rochester for two or three days to help move some member of his family who he said lived there. The plaintiff consented to this. A little later Palmanteer spoke to the plaintiff about the number plates, said that “ he didn’t have any chauffeur’s license, and * * * wondered about driving with
demonstration plates without a chauffeur’s license.” The plaintiff told Palmanteer that the plates (meaning the registration) had never been transferred to him by Bauder; that he had never received the certificate of registration, and that Bauder was the person who would have to get new number plates as the other ones had been lost or stolen.
About this time Bauder returned to Bath, and on the morning of May 11, 1923, the plaintiff and Bauder met, and plaintiff then said to Bauder that he (plaintiff) did not have any number plates or registration card (certificate of registration) and that “ it had
Shortly after this and on the same day, Palmanteer met Bauder on the street and asked Bauder to go with him to the county clerk’s office and arrange for the transfer of the registration. Bauder replied that he thought this had all been done in the morning, but Palmanteer explained to him that nothing had been done but what was necessary to obtain new plates and a new certificate of registration in Bauder’s name. Palmanteer and Bauder then went again to the county clerk’s office and Palmanteer told the clerk that the registration was to be transferred to him. This was without plaintiff’s knowledge or consent. Bauder assumed' that Palmanteer had bought the car from the plaintiff, and made out the necessary transfer, which was completed by the county clerk making out and delivering to Palmanteer a registration certificate in his name. As they left the county clerk’s office, Palmanteer told Bauder in answer to an inquiry that he had bought the automobile from the plaintiff for $1,300. Palmanteer attached the new number plates to the sport roadster and left Bath with the car.
The defendant Boomansour in turn purchased the car from Badore.
The foregoing facts are either undisputed or stated in accordance with the plaintiff’s claim.
The first contention of the defendant, namely, that the plaintiff had not sufficient title to maintain the action is based on the language of subdivision 8 of section 282 of the Highway Law (added by Laws of 1910, chap. 374), as amended by chapter 372 of the Laws of 1922, which was effective at the date of these transactions. That statute in part is as follows: “ Upon the sale or transfer of a motor vehicle registered in accordance with this section, the vendor shall endorse upon the certificate of registration of such motor vehicle the name and address of the vendee and the date of delivery, and shall sign such endorsement and shall deliver the same to the vendee together with a statement of transfer of ownership, said statement to be furnished by the Tax Commission and shall be in such form and executed in such manner as the Tax Commision shall prescribe. The vendee shall complete the execution of such statement and within ten days after the receipt thereof file the same with the Tax Commission. * * * It shall be unlawful for any person to deliver or offer to deliver or to accept or offer to accept a transfer of any motor vehicle unless there be produced and delivered to the vendee the certificate of registration issued for such vehicle endorsed as hereinbefore required. A violation of this provision shall be a misdemeanor * * *.”
The defendant argues that this section prescribes the sole manner in which title to a motor vehicle could at the time in question be lawfully transferred.
We do not find it necessary to pass upon this question, for even assuming that title passed from Bauder to the plaintiff, we think the circumstances as stated such as to estop the plaintiff
The defendant by his purchase from Badore stands in the same position as Badore.
Although Badore and Boomansour are interested witnesses, and the transaction between Palmanteer and Boomansour is proved only by the testimony of Badore, nevertheless, we do not think that a question of fact arose as to Badore being a purchaser who
The defendant’s motion for judgment at the close of all the evidence should have been granted.
The judgment and order should be reversed on the law and the facts, and judgment directed for the defendant for the dismissal of the complaint, with costs.
All concur. Present — Htjbbs, P. J., Clark, Sears, Taylor and Sawyer, JJ.
Judgment and order reversed on the law and facts, with costs, and judgment directed in favor of the defendant dismissing the complaint, with costs.