| N.Y. App. Div. | Jun 29, 1926
The appellant is trustee in bankruptcy of Avery D. Case. In July, 1924, Case bought an automobile from respondent’s assignor for $1,226, under a conditional sale contract. The vendee made default in payment after making total payments of $726.50. Respondent retook the automobile without serving a preliminary notice of intention to do so.
Sections 76 to 80-j of the Personal Property Law (as added by Laws of 1922, chap. 642), known as the Uniform Conditional Sales Act, regulate the procedure in such transactions. Under section 78 the seller “ shall retain the goods for ten days after retaking.” Section 79 says: “ if the buyer does not redeem the goods within ten days after the seller has retaken possession,” the seller shall sell them “at public auction,” etc., and that the seller shall-give the buyer “ not less than ten days’ written notice of the sale.”
A notice of holding for redemption was mailed December 22, 1924. Notice of sale on-January thud was mailed December twenty-
Two questions confront us: (1) Was the vendee entitled to ten days’ notice of sale after ten days’ holding for redemption? (2) Was there non-compliance with the provision of the Personal Property Law requiring the sale to be “ at public auction?”
As to the above question No. 1, appellant’s, contention cannot be sustained. (Freeman v. Engel, 185 A.D. 218" court="N.Y. App. Div." date_filed="1918-11-27" href="https://app.midpage.ai/document/freeman-v-engel-5251588?utm_source=webapp" opinion_id="5251588">185 App. Div. 218.)
In Shimer v. Mosher (39 Hun, 153) it is held that under the common law — which also applies to statutory sales when no specific directions are given in the statute — personal property sold at public auction for the purpose of depriving the owner of his title through a tax sale must be physically at . the place of sale. To the same effect is Sherman v. Slayback (58 Hun, 255" court="N.Y. Sup. Ct." date_filed="1890-11-26" href="https://app.midpage.ai/document/sherman-v-slayback-5499722?utm_source=webapp" opinion_id="5499722">58 Hun, 255). The same reasoning applies to the instant case.
The judgment and order appealed from should be reversed on the law- and a new trial ordered, with costs to appellant to abide the event.
Present — Hubbs, P. J., Clark, Davis, Crouch and Taylor, JJ. All concur.
Judgment and order reversed on the law and new trial granted, with costs to appellant to abide the event.