Wuertz v. Braun

Hooker, J.: This action is to foreclose a lien on a piano. The appeal is by the plaintiff from a judgment dismissing the complaint upon the merits.. The ease was before this court on an appeal from a judgment dismissing the complaint at the first trial ( Wuertz v. Braun, 113 App. Div. 459), and we then held that the plaintiff made out a ¡prima faeie case and should not have been dismissed. The defendant Irma Braun is the wife of the defendant Isidor Braun ; she alone was personally served and alone answers. Her husband deserted her between the time of the purchase of the piano and the commencement of- the action. The facts which were admitted by the defendant entitle the plaintiff to a judgment of the foreclosure of his lien. "Irrespective of the evidence offered on behalf of the plaintiff it appears from the evidence of the defendant and admissions made by her that she talked with the plaintiff about the purchase of a piano by her husband as a present for her son; that the piano was delivered at her [434] house to her husband, who at that time paid ten dollars on account' of the purchase price and executed the chattel mortgage in evidence for the foreclosure of which this action was brought; that some payments have been made on the purchase price, but she is unable to state the exact status of the account; that when her husband abandoned her she went into possession of the piano and it is now with her parents. The record shows indisputably that at the time of the commencement of the action the piano was in her possession, and failure to consent to a sale for the purposes of applying the proceeds in payment of the amount due is evident from, the fact, that upon her motion an order was made in the Municipal Court, soon after the commencement of the action, vacating a warrant of - seizure which had theretofore been executed. The plaintiff sold the piano, the purchase price was not .all paid, he took a chattel mortgage to secure the balatice.; there was due at the day of the trial the sum of seventy-seven dollars and' ninety cents, and the plaintiff is entitled to the foreclosure of his lien irrespective of whether the answering defendant or her husband executed the chattel mortgage. The complaint does not demand any personal judgment against the answering defendant, and it is, therefore, evident that the only possible defense that she could urge was that she had not been in possession. But the piano was seized at the time the action was commenced while under her physical control, and her only defense fails. The judgment should be reversed and a new. trial ordered, costs to abide the event. ITirschberg, P. J.5 Woodward, Jenks and Milleb, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.