Heating & Plumbing Finance Corp. v. Friedman

• Decision Date: 22 May 1934
• Citation: 190 N.E. 641,264 N.Y. 285
• Parties: HEATING & PLUMBING FINANCE CORPORATION v. FRIEDMAN et al.
• Court: New York Court of Appeals Court of Appeals

264 N.Y. 285

190 N.E. 641

HEATING & PLUMBING FINANCE CORPORATION

v.FRIEDMAN et al.

Court of Appeals of New York.

May 22, 1934.

Action by the Heating & Plumbing Finance Corporation against Moses Friedman and the 222-224 Metropolitan Avenue Corporation. From an order of the Appellate Division (240 App. Div. 974, 268 N. Y. S. 854), affirming an order of the Special Term denying defendant corporation's motion for judgment on the pleadings, it appeals by permission of the Appellate Division, which certified the question whether such motion should have been granted (241 App. Div. 610, 268 N. Y. S. 965).

Orders reversed, motion for judgment on the pleadings, dismissing the complaint, granted, and question certified answered in the affirmative.

Appeal from Supreme Court, Appellate Division, Second Department.

Adolph Feldblum, Alfred B. Nathan, and Benjamin Lewis, all of New York City, for appellant.

J. Hibberd Taylor and Arthur A. Atha, both of New York City, for respondent.

CRANE, Judge.

To the Personal Property Law (Consol. Laws, c. 41) was added a new section by chapter 642 of the Laws of 1922, known as section 80-d. It reads: ‘After the retaking of possession as provided in section seventy-six the buyer shall be liable for the price only after a resale and only to the extent provided in section eighty-b. Neither the bringing of an action by the seller for the recovery of the whole or any part of the price, nor the recovery of judgment in such action, nor the collection of a portion of the price, shall be deemed inconsistent with a later retaking of the goods as provided in section seventy-six. But such right of retaking shall not be exercised by the seller after he has collected the entire price, or after he has claimed a lien upon the goods, or attached them, or levied upon them as the goods of the buyer.’

The part of this section which we are called upon to apply in this case is that portion which states that the seller cannot retake his goods after he has claimed a lien upon them.

The complaint alleges that the plaintiff is the owner and entitled to the immediate possession of boilers and radiators which were installed in 222-224 Metropolitan avenue, in the borough of Brooklyn, city and state of New York; that on the 29th day of July, 1930, one Moses Friedman, a defendant, signed a conditional bill of sale to Rifkind & Marshall covering these chattels, and that the defendant and his successor in interest, 222-224 Metropolitan Avenue Corporation, have defaulted in the terms of said conditional bill of sale. Due filing and assignment by Rifkind & Marshall to the plaintiff herein were also alleged, together with a demand for the chattels.

The answer sets forth the matter which is the basis for the defendant's motion for judgment on the pleadings. This matter is set up as a separate and distinct defense and is admitted by the reply subsequently served by the plaintiff. It appears from the answer that the boilers, pipes, and radiators mentioned in the complaint were installed in the premises mentioned, and that thereafter, on or about the 6th day of December, 1930, or five months after the giving of the conditional bill of sale, Rifkind & Marshall filed in the office of the county clerk of Kings county a notice of mechanic's lien, wherein they claimed a lien by reason of the installation in the said premises of these boilers, pipes, and radiators mentioned in the complaint.

The next year, and on the 14th day of November, 1931, the said vendors procured an order from the Supreme Court of Kings county, continuing said lien for a period of one year from said date.

The mechanic's lien thus filed attached, not only to the real property (222-224 Metropolitan avenue), but to all the improvements upon the property, including the boilers, pipes, and radiators installed by the vendor-lienors. Lien Law (Consol. Laws, c. 33) art. 2, § 3.

These facts bring this case directly within the provision of section 80-d of the Personal Property Law, above quoted. The plaintiff, assignee of Rifkind & Marshall, cannot retake this property under claim of ownership, for by the filing of the...