Opinion
February, 1901.
L.L.G. Benedict, for appellant.
W.S. Burt, for respondent.
The action was brought to recover fifty-two dollars, the price of a bicycle. The Municipal Court rendered judgment in favor of the plaintiff in the sum of twenty-two dollars and sixteen cents damages, three dollars and sixty-two cents costs, two dollars and seventy-two cents prospective costs; total, twenty-eight dollars and fifty cents. This is the second appeal by the plaintiff, the first appeal having been from a judgment dismissing the complaint, with costs, which judgment was reversed by order entered June 19, 1900. The facts are as follows:
On March 29, 1899, one Becker entered into a written contract with the plaintiff, that set forth that Becker had rented from the plaintiff a certain bicycle for the term of twelve months, and had agreed to pay therefor the sum of one dollar down, and four dollars and thirty-four cents per month thereafter, until the whole sum had been paid, at the office of the plaintiff, amounting to fifty-three dollars in all. In the event of any default in such monthly payments, the whole unpaid balance was to become due and payable at once without demand, and it was also provided that when all the payments had been made the plaintiff would give to Becker "full title and a bill of sale of the Bicycle." Upon the back of the contract was indorsed the following guaranty, signed by the defendant:
"NEW YORK, March 29 th, 1899.
"In consideration of one dollar to me in hand paid, the receipt of which I hereby acknowledge, I hereby guaranty the within payments, with the understanding that in the event of my being called upon to pay the final payment or payments, the said bicycle shall become my personal property.
"Witness my hand and seal. "HENRY T. EISENTRAGER, "1883 Third Avenue, New York City."
Plaintiff thereupon delivered to Becker the bicycle, and he paid one dollar down, but no further payments were made by him or any other person. Plaintiff made demand on the defendant October 6, 1899, for the payment of the unpaid balance, which was refused, and the plaintiff then took the bicycle from Becker and tendered it to defendant on November 8, 1899, again demanding payment of the unpaid balance, which was again refused. Plaintiff still has the bicycle, which it is ready to turn over to defendant on payment of the judgment herein.
It was contended by the defendant on the former appeal ( 31 Misc. 707) that, by taking the bicycle from Becker, plaintiff had exhausted his remedies, and had no cause of action against the guarantor; but this contention was overruled by the court, which ordered a new trial.
The contract in question is not a lease, but a contract of conditional sale (Equitable General Providing Co. v. Potter, 22 Misc. 124), and contained the following clause: "If any failure shall be made in any of the within stated conditions, covenants or agreements, then such part of the whole sum of $53. provided to be paid under this instrument, shall at the time of such failure be still unpaid, shall be due and payable without demand." This stipulation is not unconscionable, and contravenes no law or rule of public policy. Baumann v. Cornez, 8 N.Y.S. 480.
I see no reason why, under the circumstances of the case, the plaintiff should not have judgment against the defendant for the whole amount claimed.
The judgment should, therefore, be modified so as to be in favor of the plaintiff for the sum of fifty-two dollars, with costs of trial, based on that amount, and, as modified, affirmed, with costs to the appellant of the first and second appeals.
O'GORMAN and BLANCHARD, JJ., concur.
Judgment modified and, as so modified, affirmed, with costs to appellant of first and second appeals.