Warren v. Lair

Headnote

Contract — sale — action to recover money paid as part of purchase price of automobile — conditional sale.

Warren v. Lair, 190 App. Div. 139 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 6, 1920, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover moneys paid by plaintiff upon the purchase price of an automobile truck which had been sold

to him by the defendant. The complaint alleged that the sale was made under a contract for the conditional sale of the truck; that possession thereof was retaken by the defendant prior to the time when the unpaid balance of the purchase price became payable; that the defendant failed to retain possession of the truck for thirty days; that he failed after the expiration of such period to sell the same at public auction within thirty days; that for all these reasons he was entitled under section 65 of the Personal Property Law to a recovery of the sums of money actually paid by him. The defendant alleged in his answer that he sold the truck to the plaintiff, taking back, as security for the unpaid purchase price, a chattel mortgage rather than an agreement for a conditional sale; that under the provisions of this mortgage he retook possession of the truck because he deemed his security to be imperiled; that he sold the truck at public auction after due notice given under the terms of the mortgage, in compliance with the law.