IN RE AMERICANA LANES, INC., 64-B-41.

• Decision Date: 08 October 1964
• Docket Number: No. 64-B-41.,64-B-41.
• Citation: 234 F. Supp. 854
• Parties: In the Matter of AMERICANA LANES, INC., Debtor.
• Court: U.S. District Court — Eastern District of New York

234 F. Supp. 854

In the Matter of AMERICANA LANES, INC., Debtor.

No. 64-B-41.

United States District Court E. D. New York.

October 8, 1964.

Blumberg, Singer, Ross & Gordon, New York City, for petitioner, Frederick Newman, New York City, of counsel.

Bennett E. Aron, West Hempstead, N. Y., for respondent.

ZAVATT, Chief Judge.

In the instant action the petitioner, Brunswick Corporation, sought to reclaim from the debtor-in-possession (hereinafter respondent), 64 automatic pinsetters and 64 bowling lanes which had been sold to the bankrupt under conditional sales contracts dated November 7, 1960 and September 16, 1960, respectively. Although each of these contracts was duly filed and refiled,¹ the respondent opposed Brunswick's petition on the ground that each of these contracts was subsequently altered by a new agreement; that each of the new agreements constituted a "transaction between the same parties"; and that the failure to file these subsequent agreements rendered the petitioner's liens invalid under Section 66-a of the New York Personal Property Law. The Referee in Bankruptcy found no new agreement between the parties with regard to the pinsetters and granted Brunswick's petition seeking reclamation thereof. Insofar as the bowling lanes were concerned, however, the Referee concluded that § 66-a required filing of two agreements entered into between the parties and that the failure to so file rendered Brunswick's lien against the bowling lanes invalid.

With regard to the pinsetters, the papers before this court reveal that in February of 1963 the bankrupt was experiencing financial difficulties and that negotiations were undertaken between the parties concerning the bankrupt's failure to meet installment payments under the conditional sales contract. These negotiations were embodied in a letter from the petitioner to the bankrupt, dated February 20, 1963, which provided that if the bankrupt would make certain payments (eight in number) on installments which were already in arrears, its "pinsetter account will be reviewed in October 1963 for the purpose of considering the refinancing of the remaining unpaid balance." Except for two payments which had been made at the writing of this letter, none of the other required payments was made and no further agreement entered into regarding the pinsetters. Under these facts the Referee rightfully concluded that the original conditional sales contract:

"was not modified nor were any additions made thereto so as to make the new agreement void under the provisions of § 66-a of the Personal Property Law. The payments which the debtor was required to make under the terms set forth in the letter dated February 20, 1963 did not constitute a new agreement or transaction between the parties. They merely were conditions to be met by the debtor before the seller would enter into a new or Extension Agreement. Since neither the requisite payment was made nor the Extension Agreement executed, this

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