145 Misc. 876 | N.Y. Sup. Ct. | 1932
This is an action in conversion against the sheriff of Saratoga county for the sale of an automobile seized under a warrant of attachment. It involves the construction of certain provisions of the Uniform Conditional Sales Act, adopted by this State in 1922 (Pers. Prop. Law, § 60 et seq,), and the liability of a duly qualified officer for the seizure and sale of an automobile under legal process to satisfy a claim in tort against the buyer under a conditional sale contract, made in Vermont, upon which a substantial balance was still owing to the seller.
The case is submitted upon stipulated facts which are substan
Section 65 of the Personal Property Law provides as follows: “ Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided. This section shall not apply to conditional sales of goods for resale.’’
Section 74 of the same statute provides for refiling of the contract upon removal of the goods to another filing district, and so far as material here, reads: “ "When, prior to the performance of the condition, the. goods are removed by the buyer from * * * another state into a filing district in this state where such contract or copy is not filed, the reservation of the property in the seller shall be void as to the purchasers and creditors described in section sixty-five, unless the conditional sale contract or a copy thereof shall be filed in the filing district to which the goods are removed, within ten days after the seller has received notice of the fifing district to which the goods have been removed.’’
One of the defenses advanced by the sheriff is that plaintiff failed to comply with the provisions of the Uniform Conditional Sales Act, above quoted, to the effect that the seller is required to refile a copy of the contract in a filing district of this State to which the automobile was removed from another State within ten days after receiving notice of the removal, and that by reason of such failure the plaintiffs in the attachment suit acquired a valid lien by virtue of the levy under the warrant. As already stated, plaintiff received notice of defendant’s seizure and possession of the car under legal process in this State on November 8, 1929. Defendant claims that because it failed, within ten days thereafter, to file a copy of the contract in the town of Stillwater, where the car was held, the reservation of title was nullified, the attachment creditors acquired a lien by virtue of the levy, and defendant’s possession and sale were lawful. Plaintiff argues that the statute is inapplicable for two reasons, first, because the original removal from Vermont, being without its knowledge or consent and of a mere temporary character, was not such a removal as is contemplated by the statute. (Hare
A second defense is alleged to the effect that this automobile was attached by a duly qualified officer under valid legal process, regular upon its face, issued by a court of competent jurisdiction, and that no claim or demand ever having been made, or notice given to him of plaintiff’s interest, his possession was lawful and the warrant of attachment and order of sale constitute complete justification.
Plaintiff, in order to maintain the action, contends that the automobile was wrongfully removed from Vermont in violation of the contract provisions; that although seizure by defendant occurred October 8, 1929, and no default in payment existed until November 21, 1929, it had the right to retake possession by reason of the removal and by reason of the provision that it might do so at any time it felt itself insecure; that its election to act under these provisions, and declare the whole amount immediately due, was manifested by its letter to the attorney for the plaintiffs in the attachment suit on November 8, 1929; that Hoffman had no levi
Plaintiff’s contentions may be considered in connection with the sheriff’s second defense above stated. On October 8,1929, Hoffman was sued in the Supreme Court of this State by the two New York State owners of the car involved in the accident for the sum of $1,200, which they claimed to be the damage to their automobile. On the same day they presented to the court an affidavit setting forth the statutory requisites for the issuance of a warrant of attachment against Hoffman, furnished an undertaking in the amount of their claim, and the writ was duly issued to the sheriff of Saratoga county by this court. Process commencing the action was personally served upon Hoffman in this State, the action was one of the character specified by statute in which the provisional remedy of attachment may issue, the defendant therein was a nonresident of this State and the court had jurisdiction of the subject-matter and the parties. The writ was, therefore, not only regular upon its face but all statutory prerequisites having been complied with, it was valid legal process which has never been attacked by either the conditional vendor or vendee. Obedient to the command of the writ, on October 8, 1929, the sheriff attached the automobile, duly made his return and all papers were property filed. When levying under the warrant of attachment the sheriff found the automobile at Stillwater, N. Y., in the possession of Hoffman, who claimed to be the owner and in whose name it was registered in Vermont. Registration is proof of ownership. (Bogorad v. Dix, 176 App. Div. 774; McCann v. Davison, 145 id. 522.) The levy, therefore, was property made, by a duty qualified officer, acting in good faith, within his territorial jurisdiction, upon property in possession of the person against whom the writ was directed and under circumstances indicating he was the owner. To all appearances Hoffman was the owner; the sheriff had no knowledge to the contrary, and under these conditions it was the clear duty of the officer to execute the warrant by making a levy. Plaintiff makes the point that because Hoffman told the sheriff at the time of the levy that the automobile was not fully paid for that was notice to him or at least sufficient to put him upon inquiry. I do not so regard it. It was no notice whatever of the existence of the contract, or the reservation of title in plaintiff (Commercial Credit Corporation v. Smith, 106 N. J. Law, 94; 148 Atl. 756), or even cf an adverse claim. Many articles are bought and sold daily as to which the purchase price is not fully paid and title passes. The vital thing here is that
On November 8, 1929, plaintiff received notice of the detention of the automobile at Stillwater by defendant under legal process in the suit against Hoffman. On that day it wrote the attorney for the plaintiffs in that action, informing him of the contract and demanding the return of the automobile to plaintiff. The letter also stated that plaintiff intended to put the officer upon notice immediately and arrange to take delivery of the automobile. The attorney replied, refusing to release it. Plaintiff failed to notify the sheriff, made no demand whatever upon him, and on February 19, 1930, he sold the automobile at public auction under a provision of the statute with respect to the disposition of perishable property, pursuant to the order of this court. On November 21, 1929, a payment fell due under the contract, which was not met, and plaintiff claims Hoffman’s possessory right thereupon ceased and it became entitled to immediate possession. Of course it did, but it failed to take any step to obtain possession. If, due to such failure, Hoffman had retained possession beyond the date of default in payment would his possession be wrongful? Clearly not; and if Hoffman’s possession under such circumstances would not be wrongful how could that of the sheriff? When plaintiff learned of the detention of the automobile here under legal process resulting from the institution of suit against Hoffman it was fairly chargeable with notice of the fact that in the ordinary course of events a sale
By simple adherence to this statute plaintiff could have obtained its property, or faffing that, it would have had redress against the officer for refusal to surrender it. The statutory remedy here provided is not exclusive. Plaintiff had other remedies as already mentioned. Good faith on its part, as well as statutory provisions and familiar legal principles, required it to act with diligence in view of its knowledge. It delayed until the sale put the automobile into the hands of an innocent purchaser whom it may not pursue. Its conduct warrants the inference that its claim was abandoned. As the sheriff’s original possession was lawful the subsequent occur
Defendant is entitled to judgment dismissing the complaint but without costs in accordance with the stipulation.