Milicie v. Pearson

Full title: BALDASSARE MILICIE, Appellant, v . CHARLES P. PEARSON, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 26, 1906

110 App. Div. 770 (N.Y. App. Div. 1906)

97 N.Y.S. 431

Opinion

January 26, 1906.

Paul Armitage, for the appellant.

James B. Kilsheimer [ George R. Dutton with him on the brief], for the respondent.

Present — JENKS, HOOKER, GAYNOR, RICH and MILLER, JJ.

GAYNOR, J.:

The judgment should be affirmed. The plaintiff's assignor knew that Sielke Co. had a contract with the defendant to fit up his store and became contractor to them to do part of that contract, viz., put in the fixtures in question, which he did. The defendant had no contract with or obligation to him whatever; he had to pay and did pay his own contractors, Sielke Co. The plaintiff's assignor knew of the defendant's contract with Sielke Co. before he made his with them, and agreed with them to furnish the chattels to be delivered to the defendant under their contract. He could not retain title under such circumstances. He knew that title was to pass to the defendant. He furnished the chattels to Sielke Co. to enable them to perform their contract and part with title to the said chattels to the defendant in order to get paid for them by him.

The researches of counsel have not discovered any case in point, but the case of Fitzgerald v. Fuller (19 Hun, 180) may bear on the case, and the case of Kerby v. Clapp ( 15 App. Div. 37, 44) bears on the question.

In the view taken of the case it is not necessary to decide whether the defendant had notice, actual or constructive, before he paid Sielke Co., of the clause in the contract of the plaintiff's assignor with them that title should not pass to them until payment of the contract price. If he had it would make no difference. He knew that title was to pass from them to the defendant under their contract at once, in order that they might fulfill their contract and be paid therefor, and delivered the chattels to enable that to take place. For him to retain a lien on or ownership of the chattels would be antagonistic to this main purpose, they could not exist together.

After the bulk of the work or all of it had been done, the plaintiff's assignor wrote to the defendant requesting him to pay Sielke Co. so that he could collect of them. If he had any ownership or lien this was a waiver of it.

The judgment is affirmed.

GAYNOR, J.:

Judgment unanimously affirmed, with costs.