
    (94 Misc. Rep. 282)
    MATHUSHEK & SON PIANO CO. v. WELD et al.
    (Supreme Court, Appellate Term, First Department.
    March 30, 1916.)
    1. Executors and Administrators <$=441—Appearance by Attorney op Decedent.
    In suit to foreclose a lien on the Instrument l>y the conditional vendor oí a piano’ tlie appearance of tlie executor of the deceased buyer, individually, as an attorney for the widow, who had custody of the instrument, could not bind decedent’s estate, which owned the instrument.
    [Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1792-1797; Dec. Dig. <3=441.1
    2. Sales <3=479(1)—Conditional Seller—Foreclosure op Lien—Statute.
    Old Municipal Court Act (Laws, 1902, c. 880) §§ 138, 139, gives sellers under contracts of conditional sale a new remedy to be regarded as a lien, as well as a conditional title, which he may enforce by action to foreclose, as any other lien may be foreclosed, the remedy being entirely distinct from tlie right to retake the property under the contract of conditional sale, when the seller is required, by Personal Property Law (Consol. Laws, c. 41) § 65, to make sale in a particular way, which has no application to foreclosure of Ms lien.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1418, 1419; Dec. Dig. <3=479(1).]
    
      3. Courts <@=>188(10)—Municipal Courts—Foreclosure of Seller’s Lien—' Jurisdiction.
    Under Old Municipal Court Act, §§ 138, 139, touching foreclosure of a seller’s lien on personalty conditionally sold, the Municipal Court of the City of New York has no jurisdiction to foreclose a lien arising under a contract of conditional sale of personalty, where neither the purchaser nor his successors in interest, as his executor, are made parties; the action being brought against his widow having only custody of the property.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. § 458; Dec. Dig. <@=>188(10).]
    Appeal from Municipal Court, Borough of Manhattan, Third District.
    Action by the Mathushek & Son Piano Company against Arthur Weld and Claudia Weld. From a judgment for plaintiff, the latter defendant appeals. Judgment reversed, and complaint dismissed.
    Argued February term, 1916, before LEHMAN, WEEKS, and DELEHANTY, JJ.
    . Franklin Bien, of New York City, for appellant.
    Lorence & Harlcavy, of New York City (Henry Harkavy, and Louis Lorence, both of New York City, of counsel), for respondent.
   LEHMAN, J.

The plaintiff herein brought an action on the 13th day of July, 1915, to “foreclose a lien” which it claimed upon a piano which was sold to Arthur Weld under a conditional bill of sale. At the time of the beginning of the action Arthur Weld was dead and íhé piano was in the possession of his widow, Claudia Weld. It is undisputed that Claudia Weld claimed no title to the piano and was not the successor in interest of Arthur Weld. The title to the piano was, at the time, in Franklin Bien as executor of Arthur Weld, and it appears that the piano was left with Claudia Weld as custodian in order to save storage charges. The plaintiff was notified that Arthur Weld was dead, but nevertheless made Arthur Weld a nominal party, and never made his executor a party to the action. The executor did not appear in the action, though Franklin Bien, as an individual, did appear as attorney for the widow. Obviously such Rn appearance cannot bind the estate, and the plaintiff does not contend that the estate was a party to this case or is bound by the decision. The piano was seized by the marshal under a writ of seizure, and the learned trial justice has given judgment adjudging that the plaintiff has a lien for the amount unpaid on its contract of conditional sale, and ordering the marshal to sell the same to satisfy the lien and the costs and disbursements awarded at the trial. Upon this appeal the defendant Claudia Weld claims that the Municipal Court was without jurisdiction to enter a judgment in the action, in the absence of the owner of the property, while the defendant contends that, though the judgment would not be binding upon tire owner, the court had power to enter such a judgment, and the judgment is binding against the custodian.

The action was brought in July, 1915, and is therefore governed by the Old Municipal Court Act. That act provided in section 139:

“No action shall be maintained in this court, which arises on a * *_ * contract of conditional sale of personal property, * * * except an action to foreclose a lien, as provided in this article.”

It also provides in section 138 that:

“In an action to foreclose a lien upon a chattel * * * a warrant, commanding the marshal to seize [it] and safely keep it to abide the judgment, may be issued,” etc.

In several cases this court has pointed out that the provisions of the Municipal Court Act which permit the “foreclosure of a lien under a contract of conditional sale” are somewhat anomalous. Strictly speaking, title under a contract of conditional sale rests in the seller, and a person cannot in theory have a lien on his own property. Nevertheless :

“Though the remedy allowed by the Municipal Court Act is anomalous in theory it is given in such explicit language that it is susceptible of only one interpretation.” Quattrone v. Simon, 85 Misc. Rep. 357, 147 N. Y. Supp. 448.

The Legislature has given a new remedy by the Municipal Court Act to sellers under contracts of conditional sale. For the purposes of that remedy the right of a seller under such a contract is to be regarded as a lien as well as a conditional title, and he may enforce this right by action to foreclose just as any other lien may be foreclosed. It must be remembered, however, that this remedy is entirely distinct from the right to “retake” the property under the contract of conditional sale.

“In case of a seizure by the marshal and a sale in execution upon a judgment, the property is not retaken by the vendor, and never comes into his possession either actual or constructive. Sigal v. Frank E. Hatch Co., 61 Misc. Rep. 332 [113 N. Y. Supp. 818], and cases therein cited. * * * In an action under section 139 of the Municipal Court Act, however, the property remains in the custody of the law until after the rights of the parties to it are determined in court, whereupon it is sold at a judicial sale and the lien of the vendor is satisfied.” Quattrone v. Simon, 85 Misc. Rep. 357, 147 N. Y. Supp. 448.

The court cannot, however, consider or determine the “rights of the parties” unless the party against whom the right is claimed is brought into court. That party in this case is obviously, I think, the only person who has a right to the possession of the property, subject to the lien of the plaintiff, and I cannot see how the court has jurisdiction to order the property taken into “the custody of the law,” in order that it may determine the rights of the parties, except in an. action where the party having a right to the possession of the property, subject to the lien, is brought into court. I fail to see how this court can sustain a judgment adjudicating the amount of a lien, and ordering the property to be sold to satisfy the lien, where the plaintiff itself concedes that the judgment is not binding upon the purchaser of the property, or his successors in interest.

If we affirm this judgment, we will produce this peculiar situation: Under the contract of sale the plaintiff has a right to retake the property, and upon such retaking he is commanded by section 65 of the Personal Property Law to make the sale in a certain way. These provisions, however, have no application to a seizure by the marshal and a sale under judgment as provided by sections 138 and 139 of the Municipal Court Act. See Quattrone v. Simon, supra; Crump v. Wissner, 163 App. Div. 45, 148 N. Y. Supp. 401. The judgment in this case is concededly not binding against the purchaser or his successors in interest, yet since the property has never been taken by the seller and come into his possession, the successors in interest of the buyers cannot enforce the rights given to them by statute upon a retaking of the chattel. Their sole right would therefore be against the marshal. If we affirm this judgment we would therefore be in the position of commanding the marshal to sell the property under a judgment which would subject the marshal to an action for damages by the successors in interest of the purchaser, since the judgment is not binding upon them and has divested them of no right to possession. It follows that the court is without jurisdiction to foreclose a lien arising under a contract of conditional sale, where neither the purchaser nor the purchaser’s successors in interest have been made parties.

Judgment should therefore be reversed, with $30 costs, and the complaint dismissed, with costs. All concur.  