102 N.Y.S. 838 | N.Y. App. Term. | 1907
On July 15, 1905, by writing, the plaintiff agreed to furnish a “ Cellar Ice House ” to one Martin for $115, the writing reciting, “ It is also agreed that the legal title to and ownership of said property shall remain in the said James McLean until the entire amount of the purchase price thereof is paid in full ” and, having thereafter manufactured it, delivered it at Martin’s place of business, on or about July 21, 1905. The writing as a “ conditional contract” was filed on October 19, 1905. Meanwhile, Martin executed a chattel mortgage, covering among other things, “ one ice box in cellar,” to one Ruppert as security for a loan, and this was filed August 10, 1905. Thereafter the mortgage was foreclosed; and the property was bought in by the mortgagee who then sold it .to the defendant, who appeals from a judgment, in an action of replevin, entered upon a verdict directed in favor of the plaintiff. To the right of the plaintiff herein to recover, it must be determined that the provisions of the Lien Law, relative to conditions and reservations in contracts for the sale of 'goods and chattels (Laws of 1891, chap. 418, § 112), do not apply to contracts for the manufacture and delivery of goods and chattels, since immediateness of delivery is no longer a requirement. Laws of 1904, chap. 698. No such case has been cited or found, the nearest approach being a dictum, in the case of Graves Elevator Co. v. Callanan, 11 App. Div. 301, 305, wherein, after referring to the recognized law of this State that contracts for the sale of goods to be manufactured do not come within the operation of the Statute of Frauds, it is said, “ By a parity of reason, it seems to me
Gildebsleeve and Amend, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.