Gerber v. Mandel — 56 N.Y.S. 1030

Majority

p. 1030

GERBER v. MANDEL et al.

(Supreme Court, Appellate Term.

March 24, 1899.)

Headnote

Conditional Sale—Bona Fide Purchaser.

In replevin against one to whom goods are consigned, and a bona fide purchaser therefrom, the fact that, in delivering the goods to the consignee, plaintiff attempted by a written instrument to retain title in himself until the property was accounted for, was unavailing, where Laws 1897, c. 418, §§ 112, 113, 115, relating to conditional sales, were not complied with.

Appeal from municipal court, borough of Hanhattan, Fourth district.

Action by Louis Gerber against Horris Handel and William Fetterer. Judment for plaintiff, and defendants appeal.

Reversed.

Argued before FREEDMAN, P. J., and HacLEAN and LEVEN-TRITT, JJ.

August P. Wagener, for appellants.

Ignace Irving Apfel, for respondent.

This action is of the same nature and upon substantially the same state of facts as the action of Frischman v. Same Defendants, 56 ¡N. T. Supp. 1029. The fact that the plaintiff in this case obtained an instrument in writing, signed by the defendant Handel, in which plaintiff attempted to retain title in himself until the property taken by Handel was accounted for, would, in the view' most favorable for the plaintiff, only bring the cáse within the law relative to conditional sales of personal property (Laws 1897, c. 418, §§ 112,113, 115); and, as the plaintiff did not comply with the requirements of that law, he is not benefited thereby. The same reasoning applies in this case as in the Frischman Case, above mentioned, and the same result is reached.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.