140 Misc. 386 | N.Y. Sup. Ct. | 1931
Twenty-three taxicabs were sold under a conditional sales agreement by the Checker Cab Manufacturing Corporation, manufacturer, to the plaintiff vendee. Notes bearing indorsements of some of plaintiff’s stockholders for the purchase price were also given by the vendee to the manufacturer.
The notes were thereafter duly indorsed and the agreement duly assigned by the manufacturer to the defendant, which advanced or financed the purchase price less charges. In July, 1924, a default in the payment of the notes by plaintiff occurred. Thereafter the twenty-three taxicabs came into possession either of the defendant, as alleged by plaintiff, or of the manufacturer, as alleged by defendant. Plaintiff, suing under section 80-e of the Personal Property
The plaintiff relies upon the case of McDougall v. Shoemaker (202 App. Div. 273, 277), and in particular upon the following: “No new consideration passed. The defendant did not return the notes given as part of the purchase price and the defendant did not waive any rights the waiver of which might constitute consideration, but rather reaffirmed the right which it had to resale and to hold the plaintiff responsible on his notes for any balance due after reselling the car.”
In that opinion, however, it is also stated: “There is no proof in the case from which we can hold that there was a valid new contract or an estoppel.”
It is not quite clear why this case was cited as authority sustaining the plaintiff’s position, since it was reversed and the judgment of the trial court reinstated by the Court of Appeals (236 N. Y. 127).
In the instant case the defendant alleges in its answer, and supports such allegations by affidavits and states upon trial it will prove the new oral agreement referred to, its execution and claimed resultant estoppel. If plaintiff and its stockholder indorsers upon the notes were released from all liability thereon and upon the contract, that would furnish a consideration for the surrender. The return of the notes would not be an absolute necessity. The intent of the parties as shown by their actions is to be considered. Explanation is given for non-surrender of the notes in the statement that the taxicabs were surrendered to the manufacturer against whom defendant brought action to recover its advances. The default of payment occurred in 1924 and although six years have passed the affidavits show that no action was ever instituted by the
Motion denied, with ten dollars costs.