
    Regent Discount Corp., Respondent, v. Ramon L. Ortiz, Appellant.
    Supreme Court, Appellate Term, First Department,
    February 9, 1961.
    
      Mary B. Tarcher and David L. Techlin for appellant. Shultz <& Shultz (Irving Shultz of counsel), for respondent.
   Per Curiam.

The circumstances herein show a retaking of the television set by virtue of the conditional sales contract, making operative the provisions of the Personal Property Law, and not an acquisition by reason of a new agreement superseding such sales contract. The retaining of the set since August, 1958, without exercising the privilege of resale releases the purchaser from further liability under the sales contract (Eager, Chattel Mortgages and Conditional Sales [Perm, ed.], § 415, p. 544; see, also, Interstate Ice & Power Corp. v. United States Fire Ins. Co., 243 N. Y. 95, 99).

The judgment should be reversed, with $30 costs, and judgment directed for the defendant, with costs.

Hecht, J. P.

(dissenting). Plaintiff brought suit to recover the balance due under a retail installment contract signed by defendant as buyer of a television set and by plaintiff’s assignor as seller thereof.

The set came into possession of plaintiff after defendant was in default and the entire balance due and payable.

My colleagues are of the opinion that there was a retaking of the set by virtue of the conditional sales contract making operative the provisions of the Personal Property Law. In my view, however, there is at least as much testimony in the record to support a finding that there was no retaking ” under the contract as there is to the contrary.

Consequently it is fair to conclude that the court below was entitled to find that the set was being held for defendant to give him an opportunity, despite the fact that the entire balance was then due and payable, to resume payments when he became financially able to do so.

In any event there was a question of fact for the trial court to determine, and on the basis of this record there is no justification for disturbing the judgment.

Accordingly, I dissent and vote for affirmance.

Aurelio and Tilzer, JJ., concur; Hecht, J. P., dissents in opinion.

Judgment reversed, etc.  