Ostrander v. Bricka

Headnote

Ostrander v. Bricka, 171 App. Div. 975 , affirmed.

Appeal, by permission, from an order of the Appellate •Division of the Supreme Court in the fourth judicial department, entered December 18, 1915, which affirmed an order of Special Term reversing a judgment of the City Court of Buffalo in favor of defendants entered upon a dismissal of the complaint and granting a new trial. Defendants sold to plaintiff on a conditional contract of sale a quantity of household furniture, title to remain in the conditional vendors until paid for in full. The vendee thereafter defaulted in her installment payments and vendors assigned for a valuable consideration “ All their right, title and interest ” in the conditional contract of sale to a third party, who thereupon took physical possession of the furniture and assumed ownership, dominion and control of same. At no time were the provisions of section 65 et seq. of the Personal Property Law followed out or observed by the vendors or their assignee after the retaking. The vendee thereupon brought an action against the vendors for the recovery of payments made by her to them under the conditional contract.

The following question was certified: “ Does section 65 of the Personal Property Law make the defendants liable to the plaintiff for the amount paid upon the contract involved in this action when the contract has been assigned by said defendants and they have parted

with all right, title and interest therein, upon the assignee thereafter retaking the property covered by said contract and failing to sell, the same as provided in said statute? ”