101 Misc. 230 | N.Y. Sup. Ct. | 1917
This is an action to set aside a sale of fixtures by the defendant Powelson to the defendant Werner on the ground that it was made contrary to the provisions of section 44 of the Personal Property Law (the Bulk Sales Act), and that the defendant Werner account for the property and pay the claim of the plaintiff, and for the appointment of a receiver. In my opinion the Bulk Sales Act does not apply here, as the sale was of fixtures only and not of merchandise. It seems to me that it was the plain intent of the legislature that the act should apply to a sale of a stock of merchandise primarily, and also to include in the prohibition fixtures pertaining to the business if sold in connection with the merchandise, but not to cover fixtures only. The repetition of the word “ merchandise ” and the punctuation of the paragraph, thus grouping “ merchandise ” with “ fixtures ” at each mention of the word “ fixtures,” after having already referred separately to the stock of merchandise, to my mind show conclusively this intent. In has been so held by Mr. Justice Mullan in the case of Saqui v. Wiricks, N. Y. L. J., Sept. 7,1916. The Michigan ease (Brown v. Quigley, 165 Mich. 237), upon which the plaintiff relies, does not seem to me to have passed upon this point, as the majority of the judges placed their decision upon the ground that the articles sold were neither fixtures nor merchandise, and the case, therefore, cannot be considered an authority upon this
Judgment accordingly. .