Manhattan Taxi Serv. Corp. v. Checker Cab Mfg. Corp.

Decision Date06 May 1930
Citation171 N.E. 705,253 N.Y. 455
CourtNew York Court of Appeals Court of Appeals


Action by the Manhattan Taxi Service Corporation against the Checker Cab Manufacturing Corporation and another. Judgment of the Trial Term in favor of the defendants was reversed by the Appellate Division and a new trial granted (226 App. Div. 624, 236 N. Y. S. 559; 228 App. Div. 638, 237 N. Y. S. 832), and defendants appeals.

Judgments of Trial Term and Appellate Division reversed and rendered in part and affirmed in part.Appeal from Supreme Court, Appellate Division, Second Department.

Samuel H. Kaufman and Sylvester Pindyck, both of New York City, for appellant Checker Cab Mfg. Corporation.

Emanuel J. Freiberg and Henry C. Burnstine, both of New York City, for appellant Hugo Hoffman Credit Corporation.

Nathan Kelmenson, of New York City, for respondent.


Plaintiff bought from the defendant the Checker Cab Manufacturing Corporation fourteen taxicabs under contracts of conditional sale, the price to be paid in monthly installments, secured by promissory notes. These promissory notes the conditional vendor sold to the defendant the Hugo Hoffman Credit Corporation, adding its own indorsement. At the same time it assigned the bills of sale, and guaranteed payment in accordance with the contracts. The plaintiff, the buyer, paid more than 50 per cent. of the purchase price of the cabs, and thereafter made default. The credit corporation gave notice of this default to the Checker Corporation,which paid the overdue installments according to its guaranty. Thereupon the Checker Company retook possession of the cabs for the buyer's breach of the condition. The seizure was followed by a resale in the name of the credit corporation, the owner of the notes. A notice of such sale, signed by the credit corporation, was published in a newspaper, posted at public places, and mailed to the buyer at its last known place of business. The notice was to the effect that fourteen cabs, with forty-four others, would be sold at public auction at a stated date at room 805, No. 1767 Broadway, in the borough of Manhattan, city of New York, the office of the signer. The sale was held at the appointed time. The cabs were not present, within the view of those attending. They were miles away, at a garage in Long Island City. There was nothing in the public notice whereby expectant bidders were informed of their location or given an opportunity to inspect them. The fifty-eight cars, i. e., the fourteen bought by the plaintiff and forty-four others, were offered in a single lot. No one was present at the sale, except an officer of the Credit Corporation, who bid $500 for each cab and bought them at that price. A large deficiency resulted.

Section 79 of the Personal Property Law (Consol. Laws, c. 41) makes a resale compulsory whenever a conditional seller has retaken possession of his goods, and the buyer at the time of the retaking has paid at least half the purchase price. The sale must be within thirty days and must be one at public auction. Section 80-e provides that, in the event of the failure of the seller to resell the goods retaken in compliance with section 79, ‘the buyer may recover from the seller his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract, with interest.’

The plaintiff sues under the statute for one-fourth of the payments made pursuant to the contract. At the trial the defendants had a verdict. The Appellate Division reversed upon the law and granted a new trial, the basis of the reversal being this, that the resale conducted as described was not a sale at public auction within the meaning of the statute.

We think plainly it was not. The general rule is that, upon a sale of personal property at public auction, the property must be at hand and within the view of those attending. Stief v. Hart, 1 N. Y. 20, 25;Sheldon v. Soper, 14 Johns, 352;Strickland v. Hare & Chase, Inc., 217 App. Div. 196, 216 N. Y. S. 506; Shimer v. Mosher, 39 Hun, 153, 155; Sherman v. Slayback, 58 Hun, 255, 12 N. Y. S. 291;Warring v. Loomis, 4 Barb. 484. The statute makes express direction to that effect when there is a sale upon execution. Civil Practice Act § 706; Code Civ. Proc. § 1428; 2 Rev. St. (1st Ed.) p. 367, § 23; Stonebridge v. Perkins, 141 N. Y. 1, 5,35 N. E. 980. We do not mean to say that in respect of other sales the requirement of view and presence is so absolute as to admit of no exception. The need for some exceptions and their range must depend upon considerations of policy and fairness that cannot be formulated with precision in advance of the event. At times the thing to be sold may be too bulky to be brought within the view of bidders, as, for example, upon a sale of a ship (Ackerman v. Rubens, 167 N. Y. 405, 60 N. E. 750, 53 L. R. A. 867, 82 Am. St. Rep. 728), or the rolling stock of a railroad. At times inspection may be useless, as upon a sale of bonds or shares of stock. Always, however, the sale must be so made as to be consistent with the fundamental purpose of an offering at public auction. This means that whenever for some special reason the chattel to be sold is not to be present in the auction room, and its nature is such that inspection by a bidder can have any possible utility, the notice of sale must state the place where the chattel is located, and give opportunity to view it. Nothing of the kind was done in auctioning...

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16 cases
  • Polish Nat. Alliance of Brooklyn, U.S.A. v. White Eagle Hall Co., Inc., 1
    • United States
    • New York Supreme Court — Appellate Division
    • 30 Diciembre 1983 compete, and any agreement that unfairly restricts that opportunity is contrary to public policy (Manhattan Taxi Serv. Corp. v. Checker Cab Mfg. Corp., 253 N.Y. 455, 171 N.E. 705). At early common law, all agreements not to bid at judicial sales were condemned, but we have come to recogn......
  • Alex Lyon & Son, Sales Managers & Auctioneers, Inc. v. Leach
    • United States
    • West Virginia Supreme Court
    • 12 Junio 2020
    ...that any agreement unfairly restrictive of that opportunity is against public policy and void." Manhattan Taxi Serv. Corp. v. Checker Cab Mfg. Corp. , 253 N.Y. 455, 171 N.E. 705, 707 (1930). "[B]y placing a bid in an auction, the bidder ‘consent[s] to be bound by the terms in the catalog go......
  • Emery's Motor Coach Lines v. Mellon Nat. Bank & Trust Co. of Pittsburgh
    • United States
    • West Virginia Supreme Court
    • 18 Diciembre 1951
    ...too bulky to be brought within the view of bidders, as, for example, upon a sale of a ship.' Manhattan Taxi Serv. Corp. v. Checker Cab Mfg. Corp., 253 N.Y. 455, 171 N.E. 705, 706, 69 A.L.R. 1190. Moreover, it is to be noted that in the instant case the deed of trust provided that the sale m......
  • Eureka-Security Fire & Marine Ins. Co. v. Maxwell
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 9 Marzo 1960 transferred and the defendant could acquire no greater title than his vendor had. In Manhattan Taxi Service Corp. v. Checker Cab Mfg. Corp., 1930, 253 N.Y. 455, 171 N.E. 705, 706, 69 A.L.R. 1190, the facts were summarized by the court as "Plaintiff Manhattan bought from the defendant The......
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1 books & journal articles
  • Avoiding the Avoid: Re-securing the Mortgage Lender Post-bfp
    • United States
    • Emory University School of Law Emory Bankruptcy Developments Journal No. 31-1, November 2014
    • Invalid date
    ...Alliance v. White Eagle Hall Co., 470 N.Y.S.2d 642, 650 (App. Div. 1983) (citing Manhattan Taxi Serv. Corp. v. Checker Cab Mfg. Corp., 171 N.E. 705 (N.Y. 1930)). 240. Black's Law Dictionary 300 (9th ed. 2009).241. BFP, 511 U.S. at 545 ("Although collusive foreclosure sales are likely subjec......

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