December 5, 1919.
P.R. Buttenheim, for the appellant.
Henry Hirschberg [ Anson J. Fowler with him on the brief], for the respondent.
Although any ambiguity in this agreement should be construed against defendant as the one who made and proffered the paper, its terms are plainly those of a mortgage and not a conditional sale. Defendant reserved no title but placed the title in the plaintiff, with whom it remained supported by her warranties. Herein the case may be distinguished from Tweedie v. Clark ( 114 App. Div. 296), where the buyer agreed that vendors should retain title until his note should be paid. Preservation of title in the seller is the essence of a conditional sale. Although ordinarily, in such sales, there is no relation of debtor and creditor, yet if the buyer gives a note but the vendor retains the title, it is still a conditional sale. Here the clauses are the familiar mortgage terms, by which the defendant may regain the piano as security if the installments are not met.
It is, however, argued that at the date of this agreement, notwithstanding these recitals, plaintiff had no piano and did not receive it till July twenty-third, when she made her first payment. While in law there were difficulties in a chattel mortgage attaching to after-acquired property, yet its lien will be good, unless as to creditors. ( Titusville Iron Co. v. City of New York, 207 N.Y. 203.) Anyhow, a discrepancy of one day between the mortgage and the first payment raises a presumption that the mortgage was actually handed over upon receipt of the five dollars paid.
Here the defendant's legal title and its subsequent taking of this piano were under and by virtue of a chattel mortgage after the default of the mortgagor. Hence the Conditional Sales Act did not apply. ( McMail v. Michaels, 147 N.Y. Supp. 516; Gaul v. Goldburg Furniture Carpet Co., Inc., 85 Misc. Rep. 426; Lauer v. Matushek Son Piano Co., 172 N.Y. Supp. 439; Organ Co. v. Crambert, 78 Ohio St. 149.)
We recognize the salutary doctrine that attempts to evade the provisions guarding sales of property retaken by conditional vendors are condemned as against public policy ( Crowe v. Liquid Carbonic Co., 208 N.Y. 396; Adler v. Weis Fisher Co., 218 id. 295; Nordone v. Austin Drainage Excavator Co., 184 App. Div. 309), but such policy cannot enable us to substitute a different contract for the one the parties have made to secure this purchase price. In a conditional sale the reservation of title allows the seller continued ownership that by breach of condition may be absolute. Such powers may invite oppression. But in a chattel mortgage the creditor has not complete title, so that the means and conditions of foreclosing the security are matters of agreement Hence there is not the same call for legislative interference with a mortgage as in case of conditional sales. If the methods of foreclosing such chattel mortgages be harsh or oppressive (which the facts here do not show), then it is for the Legislature, and not the courts, to guard the right to sell at private sale when chattel mortgages are given to secure an indebtedness payable by installments.
It follows that the judgment should be reversed, findings 4-9 modified, and the findings requested by defendant numbered 3, 4, 5 and 6 found, with defendant's proposed conclusions, and judgment rendered dismissing the complaint, with costs.
JENKS, P.J., RICH, KELLY and JAYCOX, JJ., concurred.
Judgment reversed, findings 4-9 modified, and the findings requested by defendant numbered 3, 4, 5 and 6 found, with defendant's proposed conclusions; and judgment rendered dismissing the complaint, with costs. Order to be settled before Mr. Justice PUTNAM.