Torrance v. Third National Bank of Buffalo — 53 N.Y. St. Rep. 434

Majority

p. 434

Silas C. Torrance, Pl’ff, v. The Third National Bank of Buffalo, Def’t.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1893.)

Headnote

1. Sale—Conditional—Conflict of laws.

Plaintiff’s assignor sold to one S. a safe, which 'was to remain the property of the vendor until paid for. While a portion of the purchase price

p. 435

remained unpaid, the safe, which was in the office of S., in Scranlon, Pa , was seized by the sheriff under a judgment recovered by defendant against S., and was sold to defendant, which applied the purchase price on the judgment. Held, that the rights of the parties were to be determined by the laws of Pennsylvania, where the property was situated at the time of the alleged conversion.

2. Same—Pennsylvania.

Under the law of Pennsylvania a contract for a conditional sale, while, good as between the parties, is worthless as to creditors or bona fide purchasers from a transferee.

Motion by the plaintiff for a new trial on exceptions at the Erie circuit in May, 1892, and directed to be heard at general term in the first instance.

Millard Fillmore Brown, for pl’ff and motion; Loran L. Lewis, Jr., for deft, opposed.

facts in this case are not in dispute, so that at the close of the evidence each side asked the court to direct a verdict in its behalf. The learned justice at the circuit directed a verdict in favor of the defendant and directed the exceptions thereto to be heard at the general term in the first instance.

It appears that on August 20, 1890, one Alonzo Smith, then a resident of Erie county, N. Y., executed a contract to the Hosier Safe Company, of Cincinnati, Ohio, through its agents at Buffalo, by the terms of which Smith agreed to take a. fire proof safe which was to be shipped to Scranton, Pa., and was to pay therefor the sum of $135 in instalments, together with an old safe theretofore owned by him. By the terms of this contract, the title of the safe was to remain in the seller until fully paid for. On the 6th day of January, 1891, there was a balance remaining unpaid for the safe of $105. The defendant recovered a judgment against this Alonzo Smith in the court of common pleas of the county of Lackawanna, in the state of Pennsylvania, and under this judgment the sheriff levied upon this safe, which then lay in Smith’s store in the city of Scranton, Pa., and thereafter in the month of January, 1891, the sheriff sold the right, title and interest of Smith therein, and the same was purchased by the defendant for the sum 'of forty-five dollars, which was applied toward its judgment against Smith. At the time of the issuing of the fi. fa. and the levying upon this safe thereunder, neither the defendant nor any of its agents had any knowledge or notice that Smith was not the real owner of the property. At or before the time of the sale, however, notice was given to the sheriff that the title of the property was in the Hosier Safe Company, and that thereupon the sheriff stated that he would sell only the right, title and interest of Alonzo Smith therein, which was accordingly done. The Hosier Safe Company assigned its interest in the claim against the Third National Bank to the plaintiff and this action was accordingly brought to* recover the value of the property which, at the trial, was conceded to be $100.00.

The rights of the parties to this action must be determined by the laws of the state of Pennsylvania, where the personal property was situated at the time of the alleged conversion thereof by the

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defendant. Green v. Van Buskirk, 5 Wallace, 307; 7 id., 139. This proposition has been deemed, to be undoubted since the decision of the supreme court in the last cited case, and which has been often referred to and cited in other cases, and its doctrine reaffirmed in Huntington v. Attrill, 146 U. S., 666 .

By the law of Pennsylvania, as it was proven upon the trial of this action, the contract between the Hosier Safe Company and Smith, while good as between the parties, was worthless as to creditors or bona fide purchasers from a transferee. This rule seems to be abundantly established by the decision put in evidence, of Forrest v. Nelson, 108 Pa. St., 481 .

It follows that judgment should be directed for the defendant upon the verdict.

Judgment directed for the defendant on the verdict.

Dwight, P. J., and Haight, J., concur: Lewis, J., not sitting.