Hintermister v. Lane , 34 N.Y. Sup. Ct. 497 ( 1882 )

Learned, P. J.:

The case of Comer v. Cunningham (77 N. Y., 391) sustains this judgment. It is not to be denied that the previous decisions as to the transactions which are, with some inaccuracy, called conditional sales of personal property are conflicting, at least in appearance. But in the opinion in that case, the most recent on the subject, they are examined and distinguished; and the true rules are laid down, First, that where there is a sale and delivery, though as between the parties the delivery is conditional, a bona fide purchaser from the vendee obtains a good title; according to Smith v. Lynes (5 N. Y., 41); Wait v. Green (36 id., 556). Second, that where one has possession of personal property only as bailee, with a conditional agreement for purchase, he can give no .title, until the condition be performed ; according to Austin v. Dye (46 N. Y., 500); Ballard v. Burgett (40 id., 314).

Now. in the present case the plaintiff sold and delivered the organ to Mrs. Apgar. She gave for it two negotiable notes. One of these she paid; the other was transferred by the plaintiff before the same was payable, and was partly paid by her. Thus Mrs. Apgar had paid, or was bound to pay, the purchase-price; and that too whether the organ should be destroyed or not.. She could have no defense against Davis, the assignee of the notes. The transaction was plainly an absolute purchase, with an attempt, by means of the so-called lease, to retain security on the organ for the purchase-price. This is not a ease of the bailment of personal property with a privilege to the bailee to purchase. (See Ballard v. Burgett, at foot of page 315.) But it was an actual sale and delivery; which always, “when consummated, transfers the title from the seller to the purchaser.” In Austin v. Dye (ut supra), the oxen were actually leased at a dollar per day, with a privilege of purchase. In the present case there was no real leasing, although there is an attempt by the word “leased” to give a meaning to the transaction, which it did not in fact have. The real intent of the parties was that Mrs. Apgar should purchase, and that the plaintiff should have security on the organ. The only legal way in which this could be done, as against a Iona fide purchaser, was by a chattel mortgage duly filed.

Furthermore, if any doubt existed, the assignee of the note given by Mrs. Apgar sued her thereon, recovered judgment and levied the execution on the organ itself. Thus the assignee, under whom the plaintiff now claims by reassignment, has affirmed two things: first, that Mrs. Apgar owed for the purchase-price. That shows that she did make a purchase. Second, that the organ belonged to her, since he levied upon it. The recovery of judgment was conclusive on the fact that there was a good consideration for the note; and that consideration was the sale of the property. So that the transaction was a purchase and sale and an attempt to take security for the price.

The judgment should be affirmed, with costs.

Bocees, J., dissented. Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.