138 N.Y.S. 738 | N.Y. App. Div. | 1912
The plaintiff alleges that on or about the 1st day of October, 1910, at the special instance and request of one Cery adora, the owner of certain premises situated at the southwest corner of Maple and East Forty-eighth streets, borough of Brooklyn, New York, it furnished and delivered certain bathroom and plumbing fixtures, described in a conditional bill of sale, a copy of which was annexed to the complaint, of the agreed price and value of $1,100, to be installed and which were installed in the building on said premises; that prior to the delivery of the fixtures the conditional bill of sale bearing date
I am of opinion that the defenses to which the demurrer relates are insufficient. As already observed, there is no denial in any of them that the defendant sold the fixtures as alleged in the complaint. If defendant did sell them, as it thus admitted, it is liable for conversion, nnless the foreclosure judgments cut off plaintiff’s title. If on the facts alleged in the complaint and in these separate defenses the plaintiff lost title to the property, then the demurrers should have been overruled, for a demurrer searches the pleadings, and on that theory the complaint would not state a cause of action.
The decision of the appeal depends mainly upon the construction of sections 62 and 64 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45); and we are without precedent to aid us. Section 62 of the Personal Property Law declares, in effect, that every agreement by which it is attempted to retain the title to personal property in the vendor after delivery shall be void as against subsequent purchasers, pledgees or mortgagees in good faith, and that as to them such sales shall be deemed absolute unless the contract, or a true copy thereof, he filed as required by the provisions of article 4 of the statute in which said section is contained, and unless “ the other provisions of the Lien Law applicable to such contracts are duly complied with; ” and further provides, among other things, as follows: “ Every such contract for the conditional sále of any goods' and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been duly and properly filed and indexed as directed -in this article and unless said contract shall contain a brief description, sufficient for identification, of the
.Section 64 of the Personal Property Law provides for the indorsement, entry, refiling and discharge of contracts for the conditional sale of “goods and chattels, attached or to be attached to a building,” and provides, among other things, that the officer with whom the contract is filed shall “enter” the future contingency or event required to occur before the ownership of the goods and chattels shall pass, the amount due and time when due, and shall file such contract, and indorse thereon its number and time of receipt, and shall enter in a book provided for that purpose “ in separate columns, the names of all the parties to each contract so filed, arranged in alphabetical order, under the head of ‘ vendees ’ and ‘ vendors,’ the number of' such contract and the 'date of the filing thereof, and under a column headed c property,’ they shall enter a brief description sufficient for identification of the land upon which said building stands, and if in a city or village, its location by street and number, if known, and if in a city or county where the block system of recording and indexing conveyances is in use, the section and block in which the said land is situated,” and shall keep an index “so as to afford correct and easy reference to the books containing the entries in regard to such last named contracts.” Said section further provides with respect to such -contracts as follows: “A contract for the conditional sale of goods and chattels, attached or to. be attached to a building, shall be invalid as against creditors of the conditional vendee and against subsequent purchasers or mortgagees in good faith, of such goods and chattels, or of the premises upon which the said building stands, after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless: (1) within thirty days preceding the expiration of such term a statement containing a description of such contract, the names of the parties, the time when and place where filed, the interest of the conditional vendor,
In behalf of the appellant it is contended in effect that the respondent is concluded by the judgments in the foreclosure actions, and that having failed to set up and establish its title therein, and have the premises sold subject to its rights or with a provision by which the indebtedness to it should be paid out of the proceeds of sale, it has lost title and cannot maintain an action for conversion. In behalf of the respondent attention is drawn to the authorities which hold that where a prior lienor is joined as a party defendant and it is merely alleged generally in the complaint, as in the case at bar, that he has or claims to have a lien, which lien, if any, is subordinate to the rights of the plaintiff, and without any allegation challenging his rights as they appear of record, his lien will not be affected by the decree even though he makes default in pleading or fails to establish the priority of his lien (See Jacobie v. Mickle, 144 N. Y. 237; Emigrant Industrial Savings Bank
It follows that ■ the. interlocutory judgment should he affirmed, with costs, with leave to the defendant to serve an amended answer on payment of costs in this court and in the court below.
Inq-raham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.
Judgment affirmed, with, costs, with leave to defendant to serve amended answer on payment of costs.