
    Mary Powers, Respondent, v. Alfred M. Burdick and Delia Burdick, as Administrators, etc., of Nelson Burdick, Deceased, and Others, Appellants.
    Fourth Department,
    May 6, 1908.
    Contract—transaction constituting conditional sale — estoppel of vendor — validity of assignment by vendee — conversion.
    The plaintiff’s husband bought horses of one A., giving back a note for a balance of the purchase price containing a provision that the title should remain in the seller until the note was paid. When the note became due, the defendant B. furnished the plaintiff’s husband with sufficient money to pay the note, and took back a writing stating that the team had been received from him, and that the buyer agreed to pay the loan, with interest, in six months, or the property to remain the defendant’s until payment in full. Part payments were thereafter made, but on the note becoming due, the purchaser transferred the horses to his wife, and thereafter the defendant B. took possession and advertised them for sale under the provisions of the Lien Law.
    
      Held, that the transaction as a whole constituted a conditional sale rather than a chattel mortgage, and that the defendant by his act in advertising the property under the Lien Law was estopped from asserting that the transaction was a mortgage;
    That a provision in the agreement that the property should not be disposed of without the consent of B., being merely for his protection as against innocent third parties, did not render the transfer by the vendee to his wife invalid, as she merely took the property subject to the rights of the lienor;
    That the assignee of the vendee on tendering the balance due to the vendor, together with his reasonable expenses, was entitled to possession of the property, and on the vendor’s refusal to deliver, could maintain an action for conversion.
    Appeal by the defendants, Alfred M. Burdielc and another, as administrators, etc., and others from a judgment of the County Court of Jefferson county in favor of the plaintiff, entered in the office of the clerk of said county on the 25th day of June, 1907, upon the verdict of'a jury and also from two orders respectively denying the defendants’ motions for a nonsuit and for a new trial made upon the minutes.
    
      Floyd L. Carlisle, for the appellants.
    
      Delos M. Cosgrove, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover for the conversion of a team of horses. Plaintiff’s husband, in the fall of 1904, bought the team of one Allison. The purchase price was $300, of which $30 was paid down, and for the balance of $270 a note was given payable IVIay 8, 1905, containing a provision that the team should remain the property of Allison until the note was fully paid.

When the note became due $205 was furnished by the defendant Nelson Burdick to pay the balance remaining unpaid thereon, and he took from plaintiff’s husband an agreement stating that he had received from Burdick a team and a wagon and harness, for which he agreed to pay $205, with interest, in six months, and that the property should remain Burdick’s until paid for in full. During the six months there was paid to Burdick in one way and another $179.59. October 9,1905, the day the note became due, the property was sold and transferred to the plaintiff by her husband. October 18, 1905, Burdick took possession of the property and thereafter advertised it for sale December 5, 1905, under the provisions of the Lien Law (Laws of 1897, chap. 418, § 116 et seq. ). On December 4, 1905, the plaintiff tendered to Burdick' $47.38, which (as found by the jury) was sufficient to cover the balance unpaid on the agreement and Burdick’s reasonable expenses, and demanded possession of the property, which was refused. Thereupon this action was brought. The defendant’s contention on this appeal seems to rest mainly upon the proposition that the agreement given by plaintiff’s husband to Burdick was a chattel mortgage and not a contract for the conditional sale of the property. Burdick seems at the time to have treated the agreement as a conditional sale. After taking possession of the property he retained it for thirty days, and after the expiration of that time he advertised it for sale under section 116 et seq. of the article of the Lien Law relating to conditional sales. Burdick in his answer alleged specifically that his proceedings in taking, retaining and selling the property were under these provisions of the Lien Law. The real trouble seems to have arisen over the figures as to how much had been paid on the agreement, what remained unpaid and what Burdick’s reasonable expenses were in caring for the property.

There can be no doubt but that this agreement was for a conditional sale under the provisions of the article of the Lien Law in question and not a chattel mortgage. It was competent for plaintiff’s husband and Burdick to agree at the time the paper ivas given that title to the property was then in Burdick and should remain in him until the $205 was fully paid, and the transaction amounted to such an agreement.

Burdick cannot now be heard to allege that he had not such title when the conditional sale was made. The parties could have made the transaction the giving of a chattel mortgage, but they chose to make it a conditional sale, and to subject themselves to the statutory restrictions and regulations relating to such contracts, and they must abide by the same.

Under the provisions of the Lien Law the vendee might before a sale pay up the balance unpaid and reasonable expenses and would then be entitled to the possession of the property. The vendor is only entitled to be made whole.

The provision in the agreement that the property should not be disposed of without the consent of Burdick1 was for his protection, so that the rights of innocent third parties should not intervene. It did not render the sale and transfer to plaintiff of her husband’s interest in the property invalid. She took the property subject to the rights of Burdick. Bo other protection to Burdick was needed. He cannot claim that the plaintiff acquired no title or interest in the property, but can only insist that her interest is subject to his.

All concurred.

Judgment and order affirmed, with costs. 
      
       Amd. by Laws of 1900, chap. 762.— [Rep.
     
      
       See article 9, as amd.— [Rep.
     