131 N.Y.S. 909 | N.Y. App. Div. | 1911
Lead Opinion
At the time the piano was sold the transaction was governed by chapter 315 of the Laws, of 1884, as amended by chapter 488 of the Laws of 1885 and chapter 420 of the Laws of 1894, which substantially provided that a conditional sale of property should be void as against subsequent purchasers and mortgagees in good faith unless the contract or a copy of it was filed in the office of the town or county clerk, but that such requirement should not apply to household goods, pianos and other specified articles, provided the contract was executed in duplicate, and one duplicate was delivered to the purchaser.
The contract was not filed, and a duplicate was not delivered to the purchaser, but it is assumed by counsel that a pledgee of the property is not within the protection of the statute accorded to purchasers or mortgagees. The Lien Law
If we assume that a pledgee of the piano was not entitled to the benefit of the former statute, clearly the law of 1897 requiring (§ 112 et seq., as amd.) the vendor to file the contract of conditional sale or to furnish a duplicate to the purchaser applies and the plaintiff was then required to comply with the provisions of- the.statute in order to hold the property against subsequent purchasers, pledgees or mortgagees in good faith.. (Stevenson Brewing Co. v. Eastern Co., 22 App. Div. 523; affd., 165 N. Y. 634; Vincinguerra v. Fagan, 57 Misc. Rep. 224.)
I think the evidence clearly shows that Mrs. Davis was a pledgee .in good faith of the piano. The fact that it was brought to her place by the husband, ostensibly as his own, that the wife and husband removed from the premises leaving the piano there and that the husband pledged it for the board bill of himself, Wife and child, and that the wife has. never questioned the transaction or claimed the piano, carries with it a necessary Duplication, in the absence of evidence to the contrary, that it was pledged with the consent of the wife or that the husband had such an interest in the property that he had the right to.pledge it. Therefore, as between the plaintiff and Mrs. Davis the condition attached to the sale. reserving title in the plaintiff was void, and if Mrs. Davis could retain the possession of the piano against him, the defendant may avail herself of the same defense.
• Mrs. Davis, under section 71 of the Lien Law (Laws of 1897, chap. 418), acquired a lien upon the piano for the hoard which she was furnishing from day to day to Mrs. Mann, her husband and son. (Waters & Co. v. Gerard, 189 N. Y. 302.) The alleged pledge was in fact a mere recognition of the hen and perhaps affected somewhat the manner in which it might he enforced. With the piano were many articles of furniture. These articles and the piano were left for many years with Mrs. Davisand many of them were practically used
The judgment of the City Court and of the County Court are, therefore, reversed upon the law and the facts, with costs to the defendant in all the courts.'
All concurred, except Smith, P. J., dissenting in opinion.
Dissenting Opinion
Assuming for the argument that chapter 418 of the Laws of 1891 was retroactive, so as to require the filing of a conditional contract of sale in order to protect the conditional vendor from a subsequent pledge of a piano in good faith, the-difficulty with defendant’s position is that neither she nor the pledgee, from whom she derived title, was a purchaser or pledgee in good faith. It is conceded that the defendant got her right by gift from her mother-in-law, Mrs. Davis. Mrs. Davis took the piano under pledge for an antecedent debt, and, therefore, is not protected by the statute. (Harder v. Plass, 57 Hun, 541; Russell v. St. Mart, 83 App. Div. 545.) The plaintiff, therefore, has not lost his right by failing to file his contract of sale. The only other objection that can be urged against the plaintiff’s right is his delay in taking possession of the piano. . There certainly can be no claim of title to the piano by the right of adverse possession, and the vendee having forfeited her rights thereunder by failure to pay according to the terms of the contract, the plaintiff had the clear right to replevin the piano, and the judgment should be affirnied, with costs.
Judgment of the City Court and County Court reversed- on law and facts, with costs to defendant in all courts.
