
    Frederick M. Leonard, as Trustee of the Estate of Winchell Studio and Chasmar Press, Bankrupt, Appellant, v. Frank L. Montague, Respondent.
    First Department,
    March 7, 1913.
    Sale — conditional sale — resale by vendor — bankruptcy of vendee — waiver of failure to comply with statute —■ authority of officers of bankrupt corporation — recovery of profits made on resale.
    If goods sold under a contract of conditional sale are retaken by the vendor and the vendee is subsequently adjudicated a bankrupt, the trustee of the latter is entitled to recover the amount paid upon the goods where the vendor failed to keep them for thirty days after taking possession and has failed to give notice of sale as required by statute. However, such failure to comply with the statute may be waived.
    A jury is entitled to find that there was a waiver of compliance with said statutory provisions where it appears that the president and treasurer of the bankrupt, a corporation, prior to the adjudication in bankruptcy not only consented but actually co-operated in bringing about the sale in the manner in which it was made. Such waiver was within the apparent scope of the power of said officers.
    But where the resale by the conditional vendor netted a sum in excess of that due from the vendee, the trustee in bankruptcy is entitled to recover such excess where the officers of the bankrupt did not waive any claim to the excess. Moreover, had they waived such claim the act would have been ineffective as exceeding their implied authority.
    Appeal by the plaintiff, Frederick M. Leonard, as trustee, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of June, 1912, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the 16th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Henry B. Twombly, for the appellant.
    
      William C. Davis, for the respondent.
   Scott, J.:

The action is by a trustee in bankruptcy of the Winchell Studio and Ohasmar Press, a corporation, which was adjudicated a bankrupt on January 23, 1909, plaintiff having been appointed trustee on June twenty-fourth of the same year. The transactions leading up to the present controversy began in 1907, when the defendant sold to the Ohasmar Printing Company, the assignor of the bankrupt, three color printing presses for the sum of $16,840 under a conditional bill of sale, whereby title was retained in the vendor until the full payment of the consideration, of which, however, only $3,040 was actually paid. In December, 1908, the Sprague Electric Company sold to the Ohasmar Printing Company five electric motors for $1,785 -under a like conditional bill of sale, retaining title in the vendor until payment of the consideration, of which only $1,082.20 was paid. There is a disputed item of about $800 claimed to have been paid on account of the presses by the surrender and cancellation of certain notes, which is not considered in the foregoing estimate of the sums paid, the evidence relating thereto being far from clear. Defendant subsequently acquired from the Sprague Electric Company all of its interest in and rights respecting the five motors. .

In 1908 the Ohasmar Printing Company became merged in the bankrupt corporation which acquired all of its right, title and interest in and to the presses and motors and assumed its obligations to pay the balance of the purchase price.

Following upon the failure of the bankrupt to pay for the presses and motors in accordance with the bills of sale, defend-an took possession of them and sold them at private sale to at concern known as the Chasmar-Winchell Press for a price which apparently netted a substantial sum over and above all that was then due upon them. Plaintiff sues upon three causes of action, but seeks to recover only upon two, one having been waived upon the trial. His remaining claims are: First. That he is entitled to recover all that had been paid upon the presses and motors because defendant failed to keep the goods for thirty days after having taken possession of them and failed to sell at public sale and also to give notice of sale. (Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], § 116, as amd. by Laws of 1900, chap. 762; Id. §§ 117, 118.) Second. That he is entitled to recover the balance, whatever it was, realized by defendant upon the resale over and above the amounts then due upon the presses and motors.

The trustee, of course, succeeds to all the rights of the bankrupt and is entitled to recover upon the first cause of action unless the defendant has made out his defense of waiver, for concededly the-defendant failed to comply with the provisions of the statutes above cited. The evidence upon which the jury found that strict compliance with the statutes had been waived was to the effect that the president and treasurer of the Winchell Studio and Ohasmar Press, which had not then been adjudicated a bankrupt, had not only consented to but had actively cooperated in bringing about the sale at the time and in the manner in which it was made. This was sufficient to establish a waiver, and it was within the apparent scope of the power of these officers. The defendant was, therefore, justified upon the evidence as it stood when the case was submitted to the jury in considering that the strict requirements of the statutes had been waived. Upon these issues we think that the verdict was justified.

As to plaintiff’s claim for the surplus of the amount realized upon the resale over and above the amount due we cannot see that any defense was made out. The officers of the bankrupt did not undertake to waive or release any claim to that, and if they had done so, their act would have been ineffective as exceeding their implied authority. Just what the surplus amounted to it is difficult to say. The plaintiff, upon different theories, claims various sums upon this count ranging from $2,137.80 to $1,005, which latter he deems the irreducible minimum. The defendant, on the other hand, claims that if proper allowance were made for interest on deferred payments and for expenses incurred by defendant there would be found to be no surplus. Whether he is entitled to these allowances, and, if so, how much they come to, cannot be determined upon the evidence before us.

It follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment ana order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  