134 Misc. 721 | N.Y. Sup. Ct. | 1929
The stipulated facts are, briefly, as follows: On December 20, 1927, the defendant sold and delivered to one China three automobile trucks under written contracts of conditional sale, which were duly filed where the purchaser resided eight days later. When sold and delivered, these trucks were all fully equipped with tires and inner tubes mounted on their wheels. Shortly after the sale and before the contracts were filed, the defendant assigned them to another, viz., Official Purchase Corporation, and guaranteed payment of all deferred payments as specified therein, and covenanted that in default of payment or performance he would pay the full amount remaining unpaid to the assignee upon demand. On August 2, 1928, the plaintiff delivered to .China two tires and two tubes, and on August sixteenth following three tires and three tubes for use upon said trucks or some of them. This transaction was evidenced in writings that, while termed u Lease Agreement,” were in effect contracts of conditional sale, and they were never filed. On August 27, 1928, China being then in default on his contracts for the purchase of the trucks, the Official Purchase Corporation seized, possessed and advertised them for sale on September 12, 1928. At this time China had made but a few payments on account of his purchase from plaintiff of the said tires and tubes which were then mounted on the wheels of the trucks and were seized and possessed by the conditional vendor of the trucks as aforesaid. After their seizure on August twenty-seventh, and before the sale on September twelfth, plaintiff demanded of the Official Purchase Corporation and of the defendant its said tires and tubes, and it is stipulated that the defendant had knowledge prior to September 12, 1928, “ that plaintiff claimed to be the owner of said tires and tubes and that plaintiff elected under the terms of ” plaintiff’s contracts with China “ that the said rental payments should become due.” The sale followed on the advertised day at which the trucks and the tires and tubes in question were all sold at auction to the defendant.
The action is in replevin, and two questions are presented: When the Official Purchase Corporation seized and possessed itself of the trucks, did it as a creditor of China thereby acquire a lien by attachment or levy upon the tires and tubes of the plaintiff which were then mounted upon the said trucks, so as to render plaintiff’s conditional sale agreements with China void both as to it and the defendant who later purchased them? My answer is in the negative. In the first place, I do not consider that the taker of
Defendant also contends that the delivery by plaintiff to China of the tubes and tires in question, along with the fact that they were purchased for these particular trucks and were mounted upon them for use to take the place of those that were upon the trucks when the latter were originally sold to China, constituted them integral parts of the trucks, so that title thereto became vested in the conditional vendor as an increase of the goods, under the sanction of section 80-g of the Personal Property Law (as added by Laws of 1922, chap. 642). I cannot agree with this. Plaintiff’s contract for conditional sale of the tires and tubes, though not filed, was valid as to the Official Purchase Corporation, it
The defendant became the purchaser of the property in question, but as I understand the stipulation of the parties, he had prior to his purchase actual notice of the provision in plaintiff’s contract with China, whereby it had reserved its title to the property and accordingly that he does not claim a title as a purchaser under section 65 of the Personal Property Law.
The parties have also stipulated that the fair market value of the tires and tubes in question at the time plaintiff demanded them of the defendant was $350 inclusive of damages for withholding, and, for the reasons aforesaid, my opinion is that the plaintiff is entitled to judgment against the defendant for the return of said tires and tubes and in the alternative for the sum of $350 with interest from the time of plaintiff’s demand for the return, together with the costs of this action.
Settle decision on notice, and on the day of settlement either party may submit requests to find.