Cent. Union Gas Co. v. Browning

• Decision Date: 16 December 1913
• Citation: 103 N.E. 822,210 N.Y. 10
• Parties: CENTRAL UNION GAS CO. v. BROWNING.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 10

103 N.E. 822

CENTRAL UNION GAS CO.

v.BROWNING.

Court of Appeals of New York.

Dec. 16, 1913.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Central Union Gas Company against Edward W. Browning. From a judgment of the Appellate Division (146 App. Div. 783,131 N. Y. Supp. 464) affirming by a divided court a judgment of dismissal, plaintiff appeals. Reversed, and new trial granted.

John A. Garver, of New York City, for appellant.

Clarence E. Thornall, of New York City, for respondent.

WERNER, J.

The action is for the alleged conversion of 100 gas ranges which the plaintiff installed in certain housekeeping apartments on 137th street, New York City, under a contract between the plaintiff, which furnished the ranges, and the Ignatz Florio Company, owner of the premises, which acquired the same for the use of its tenants.

[1] There is some discussion in the briefs as to the nature of this contract, but we are satisfied that it is more than a mere lease with an option for purchase, as contended by appellant, and that it is a contract for a conditional sale. One or two excerpts from the contract will suffice to indicate the reasons for this view. The contract, after providing for a leasing and the rate of rental, further specifies that ‘Unless terminated in writing this agreement will be extended from year to year for a period of six years from the date hereof.’ And further that: ‘it is understood and agreed that within one year from the date hereof the consumer has the option of purchasing from the company (the plaintiff) the appliances described, at the rate of $12.00 each; or when six consecutive yearly payments have been made aggregating four hundred and fifty dollars, the appliances above mentioned are to become the property of the consumer.’ That this contract is something more than a lease, and that it has the essential attributes of a contract for a conditional sale, does not admit of doubt.

[2] The conditional sales statute (Personal Property Law of 1897, c. 418 [Consol. Laws, c. 41, § 62; Laws 1909, c. 45] § 112, as amended in 1904 [Laws 1904, c. 698]) provides that ‘every such contract for the conditional sale of any goods and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been duly and properly filed and indexed,’ as directed. It is unnecessary...