
    Mathushek & Son Piano Co., Respondent, v. Arthur Weld and Claudia Weld, Sued as Mrs. Arthur Weld, Appellants.
    (Supreme Court, Appellate Term, First Department,
    March, 1916.)
    liens — foreclosure of — executors and administrators — actions — mechanic’s lien.
    Where, in an action brought in the Municipal Court of the city of New York to foreclose a lien arising under a contract of conditional sale, neither the purchaser nor his successor in interest had been made parties, the court is without jurisdiction to render a judgment.
    At the commencement of an action brought in said court in July, 1915, to foreclose a lien upon a piano sold under a contract of conditional sale the conditional vendee was dead and the piano was left with his widow as custodian by the executor in whom the title was. The conditional vendor, though notified of the death of the conditional vendee, made him but not his executor a party defendant. The executor though he did not appear in the action in his representative capacity did appear as attorney for the widow of the conditional vendee. Held, that the court was without jurisdiction to render a judgment adjudging that plaintiff had a lien for the amount unpaid on its contract and ordering the marshal to sell the same to satisfy the said lien and the costs and disbursements awarded at the trial.
    Appeal from a judgment of the Municipal Court, borough of Manhattan, third district, in favor of the plaintiff.
    Franklin Bien, for appellants.
    Lorence & Harkavy (Henry Harkavy, and Louis Lorence, 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 the 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 an 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 the 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 11 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 can not 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. 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 undér 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, 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. 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, only the 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. 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 ike marshal to sell all 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. ha.ve been made parties.

Judgment should, therefore, be reversed, with thirty dollars costs, and the complaint dismissed with costs. -

Weeks and Delehanty, JJ., concur.

Judgment reversed, with costs.  