Freeman v. Menkes

SINNOTT, J. This is an action described as “goods sold and delivered” _ on the summons, but in the proof it seems to be an action on a conditional sale, whereby chattels are leased and on default the entire rent for the chattel becomes due, and title does not pass until payment of the entire amount is made, when installments of rent are credited as installments paid on the purchase price. [1] The defendant returned a coat, which is the chattel in question, to the plaintiff to make repairs. The defendant demanded the coat back, and its delivery was refused until payment of the amount due on the coat was made. The plaintiff thereby has converted the coat to his own use, has elected to terminate the lease for the use of the coat, and resumes possession, and in my opinion cannot recover under the instrument while he retains possession of the defendant’s property. The case of Ratchford v. Cayuga, 159 App. Div. 525, 145 N. Y. Supp. 83, was an action to foreclose a mortgage covering certain real estate, and the question decided by the trial court was that the property under [362] the conditional sale retained its character as personal property, and it was not an instrument renting a chattel pending the final payment of certain installments, which when completed would be applied as the purchase price, and compel the passage of title; neither does it appear from a reading of that case that physical possession of the property was resumed by the mortgagor, but that the right to possession by reason of the failure of title to pass was not disturbed, and this is what the court means when it says: “It is not at all consistent with the holding of the property as security for the purchase price.” [2] In the action at bar the defense is established on either of two theories : The lease was terminated by the resumption of physical possession of the property and refusal to surrender it to the defendant, or as an offset on his counterclaim to offset the plaintiff’s claim by reason of the conversion of the property, the value of which has been fixed by the terms of sale between the parties. See Avery v. Chapman, 127 N. Y. Supp. 721; Kirk v. Crystal, 118 App. Div. 32, 103 N. Y. Supp. 17; Edmead v. Anderson, 118 App. Div. 16, 103 N. Y. Supp. 369; White v. Gray, 96 App. Div. 156, 89 N. Y. Supp. 481. The complaint is therefore dismissed.