Rivara v. James Stewart & Co.

Headnote

Pleading — conditional sale — when com/plaint in action to recover payments made on account of conditioned purchase of steam tug states cause of action,

Rivara v. Stewart & Co., 204 App. Div. 890 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 15, 1922, which affirmed an order of Special Term denying a motion for judgment upon the pleadings. Plaintiff sued to recover $23,518.87, with interest; being alleged payments on account of a conditional purchase of the steam. tug James B. Stewart on April 17, 1919. The complaint showed that plaintiff made payments up to October 27, 1920, but prior to April 7, 1921, had defaulted in such payments; that defendants obtained possession of the tug by admiralty proceedings in which the United States marshal delivered the tug to them. Plaintiff’s gravamen was that, although he had not redeemed the tug, nor made good his default, defendants did not comply with sections 65 and-66 of the Personal Property Law of the state of New York, in that after expiration of thirty days they did not give notice of the sale of the tug at auction or otherwise; also in defendants’ failure to sell it within a period of thirty days.

The following questions were certified:

“1. Do the provisions of sections 63, 65 and 66 of the Personal Property Law of the state of New York (Cons. Laws, ch. 41) apply to ships and vessels enrolled in a United States Customs House?

“ 2. Did the New York legislature have power to require the filing with local officials, such as registers and county clerks, of contracts for conditional sale of vessels enrolled in a United States Customs House?

“ 3. Does the complaint herein state facts sufficient to constitute a cause of action? ”