Diamond v. Rosenblatt

Page, J. The plaintiff proved that he sold a show case valued at sixty dollars to one Henry Pols and received in payment a conditional bill of sale whereby title was to remain in the vendor until full payment of the purchase price; it was also proved that the purchase price was never paid. The defendant was the holder of a chattel mortgage on the fixtures of the said Henry Pols, and upon default in his mortgage sold all of the fixtures, including the show case in question, and applied the proceeds upon his debt. The plaintiff brought this action against the defendant in conversion on the ground that [58] he was the owner of the property, and upon its wrongful sale became-entitled to immediate possession thereof, which was refused him upon demand. The learned trial justice granted judgment in favor of the plaintiff, from which this appeal is taken, on the ground that section 139 of the Municipal Court Act is a complete bar to the action, and the court had no jurisdiction thereof. Section 139 of the Municipal Court Act provides: “No action shall be maintained in this court, which arises on a contract of conditional sale of personal property; a hiring of personal property where title is not to vest in the person hiring until payment of a certain sum; or a chattel mortgage made to secure the purchase price of chattels; except an action to foreclose the lien, as provided in this article. For the purpose of this section an instrument in writing as above stated shall be deemed a lien upon a chattel * * *.’’ It has been repeatedly held that this section of the act applies as well to an action against one who takes from the vendee as to an action directly against the vendee. Ginsburg v. De Silvestri, 42 Misc. Rep. 530; Jacobs v. Columbia Storage Warehouses, 55 id. 268. In the case at bar the action is against the mortgagee of the plaintiff’s vendee, who stands in the place of the vendee. The court had no jurisdiction of the action. The judgment must therefore be reversed, with costs, and the complaint dismissed, with costs. Lehman and Whitaker, JJ., concur. Judgment reversed, with costs, and complaint dismissed, with costs.