Empire State Chair Co., Inc. v. Beldock, No. 231.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: SWAN, CLARK, and FRANK, Circuit
• Citation: 140 F.2d 587
• Parties: EMPIRE STATE CHAIR CO., Inc., v. BELDOCK. In re PATIO CAFE, Inc.
• Decision Date: 03 February 1944
• Docket Number: No. 231.

140 F.2d 587 (1944)

EMPIRE STATE CHAIR CO., Inc.,
v.
BELDOCK. In re PATIO CAFE, Inc.

No. 231.

Circuit Court of Appeals, Second Circuit.

February 3, 1944.

Sam H. Lipchitz, of New York City (Morris O. Alprin, of New York City, on the brief), for appellant.

Harold Forstenzer, of New York City, for appellee.

Before SWAN, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This case presents the issue whether under the Uniform Conditional Sales Act, adopted in New York in 1922, Personal Property Law, Consol.Laws, c. 41, § 60 et seq., the filing with the recording officer of a contract reserving title until complete payment in the vendor of "all the chattels and fixtures described in the specifications hereto," which specifications "are annexed hereto and are identified by the signatures of the parties hereto, and become hereby a part of this contract," is valid without the reservation of possession against the vendee's trustee in bankruptcy when the specifications are not filed. The case suggests other issues, some at least of which were not presented below: whether a construction contract for the remodelling of a

140 F.2d 588

store as a cafe, with somewhat incidental reference to equipment, is properly to be considered a conditional sales contract, and, if so, how the agreed consideration and the payments made toward it are to be apportioned;¹ whether on a contract concerning fixtures to be attached to realty the trustee in bankruptcy can take advantage of the failure to file the contract in the land records, as required by § 7 of the Uniform Act, Personal Property Law, § 67;² and whether the Uniform Act, §§ 4, 5, Personal Property Law, §§ 64, 65, requires any description, and, if so, how much, of the goods sold.³ But since decision of the issue as stated is decisive, we do not decide the other issues

Applying the Uniform Act, as adopted in Pennsylvania in 1925, 69 P.S.Pa. § 361 et seq., it has been held that the recording of a conditional sales contract for machinery and equipment described in an annexed schedule (Exhibit A) was not valid against the vendee's trustee in bankruptcy where Exhibit A was not filed. Salkind v. Dubois, 3 Cir., 105 F.2d 640, affirming the opinion of Maris, J., in In re Mineral Lac Paint Co., D.C.E.D.Pa., 17 F.Supp. 1. A later holding to the same effect was made also by Maris, J., in In re Smith, D.C.E.D. Pa., 19 F.Supp. 597. These cases cite earlier cases not under the Uniform Act that failure to record a part of an agreement is a fatal defect, In re Ford-Rennie Leather Co., D.C.Del., 2 F.2d 750, 756; Meier & Frank Co. v. Sabin, 9 Cir., 214 F. 231; and In re Bazemore, D.C.N.D. Ala., 189 F. 236. Although the last case was reversed in Cable Co. of Alabama v. Stewart, 5 Cir., 191 F. 699, on the ground that the note there was not made a part of the contract, and hence that the recording

140 F.2d 589

of the latter alone was sufficient, the case reaffirms the general principle

We have found no case opposed on the exact facts. Indeed, there seems to be but a single case throwing doubt on the general proposition, namely, Diamond Iron Works v. Werley, 135 Wash. 228, 237 P. 313. There, under a state statute, Rem. Comp.Stat. § 3670, not the Uniform Act, a conditional sales contract for "machinery as per plans and specifications submitted herewith" was held valid, even though the plans and specifications were attached only to the original and were not filed. The chief justice dissented, and the case is criticized in 65 A.L.R. 714, 724, as going to...