Mathushek & Son Piano Co. v. Weld

[1] The plaintiff herein brought an action on the 13th day of July, 1915, to “foreclose a lien” which it claimed upon a piano which was sold to Arthur Weld under a conditional bill of sale. At the time of the beginning of the action Arthur Weld was dead and íhé piano was in the possession of his widow, Claudia Weld. It is undisputed that Claudia Weld claimed no title to the piano and was not the successor in interest of Arthur Weld. The title to the piano was, at the time, in Franklin Bien as executor of Arthur Weld, and it appears that the piano was left with Claudia Weld as custodian in order to save storage charges. The plaintiff was notified that Arthur Weld was dead, but nevertheless made Arthur Weld a nominal party, and never made his executor a party to the action. The executor did not appear in the action, though Franklin Bien, as an individual, did appear as attorney for the widow. Obviously such Rn appearance cannot bind the estate, and the plaintiff does not contend that the estate was a party to this case or is bound by the decision. The piano was seized by the marshal under a writ of seizure, and the learned trial justice has given judgment adjudging that the plaintiff has a lien for the amount unpaid on its contract of conditional sale, and ordering the marshal to sell the same to satisfy the lien and the costs and disbursements awarded at the trial. Upon this appeal the defendant Claudia Weld claims that the Municipal Court was without jurisdiction to enter a judgment in the action, in the absence of the owner of the property, while the defendant contends that, though the judgment would not be binding upon tire owner, the court had power to enter such a judgment, and the judgment is binding against the custodian.

[2, 3] The action was brought in July, 1915, and is therefore gov

“No action shall be maintained in this court, which arises on a * *_ * contract of conditional sale of personal property, * * * except an action to foreclose a lien, as provided in this article.”

It also provides in section 138 that:

“In an action to foreclose a lien upon a chattel * * * a warrant, commanding the marshal to seize [it] and safely keep it to abide the judgment, may be issued,” etc.

In several cases this court has pointed out that the provisions of the Municipal Court Act which permit the “foreclosure of a lien under a contract of conditional sale” are somewhat anomalous. Strictly speaking, title under a contract of conditional sale rests in the seller, and a person cannot in theory have a lien on his own property. Nevertheless :

“Though the remedy allowed by the Municipal Court Act is anomalous in theory it is given in such explicit language that it is susceptible of only one interpretation.” Quattrone v. Simon, 85 Misc. Rep. 357 , 147 N. Y. Supp. 448 .

The Legislature has given a new remedy by the Municipal Court Act to sellers under contracts of conditional sale. For the purposes of that remedy the right of a seller under such a contract is to be regarded as a lien as well as a conditional title, and he may enforce this right by action to foreclose just as any other lien may be foreclosed. It must be remembered, however, that this remedy is entirely distinct from the right to “retake” the property under the contract of conditional sale.

“In case of a seizure by the marshal and a sale in execution upon a judgment, the property is not retaken by the vendor, and never comes into his possession either actual or constructive. Sigal v. Frank E. Hatch Co., 61 Misc. Rep. 332 [ 113 N. Y. Supp. 818 ], and cases therein cited. * * * In an action under section 139 of the Municipal Court Act, however, the property remains in the custody of the law until after the rights of the parties to it are determined in court, whereupon it is sold at a judicial sale and the lien of the vendor is satisfied.” Quattrone v. Simon, 85 Misc. Rep. 357 , 147 N. Y. Supp. 448 .

The court cannot, however, consider or determine the “rights of the parties” unless the party against whom the right is claimed is brought into court. That party in this case is obviously, I think, the only person who has a right to the possession of the property, subject to the lien of the plaintiff, and I cannot see how the court has jurisdiction to order the property taken into “the custody of the law,” in order that it may determine the rights of the parties, except in an. action where the party having a right to the possession of the property, subject to the lien, is brought into court. I fail to see how this court can sustain a judgment adjudicating the amount of a lien, and ordering the property to be sold to satisfy the lien, where the plaintiff itself concedes that the judgment is not binding upon the purchaser of the property, or his successors in interest.

If we affirm this judgment, we will produce this peculiar situation: Under the contract of sale the plaintiff has a right to retake the prop

Judgment should therefore be reversed, with $30 costs, and the complaint dismissed, with costs. All concur.