
    (21 Misc. Rep. 194.)
    ISERMAN v. CONKLIN.
    (Rockland County Court.
    August, 1897.)
    Í. Conditional Sale—Rights of Seller.
    Where a machine is conditionally sold under an agreement, in the form of a lease, which provides that the purchaser shall make monthly payments promptly, and that title shall not vest till the rentals amount to a specified sum, the seller may retake the machine on default in such payments.
    2. Principal and Agent—Liability of Agent.
    Where personal property conditionally sold is retaken by one known by the purchaser to be acting as agent for the seller, an action to recover the property, or for damages, should be brought against the principal, not against the agent.
    Appeal from justice court.
    Action by Josephine Iserman against Walter E. Conklin for conversion. From a judgment for plaintiff, defendant appeals. Be: versed.
    Richard S. Harvey, for appellant.
    Frank Comesky, for respondent.
   TOMPKINS, J.

This action was brought to recover the possession of a sewing machine, and for damages for its unlawful detention. The judgment appealed from awarded to the plaintiff the possession of the machine, and the sum of $48 damages and $14.20 costs. Plaintiff bought the machine in October, 1894, on the installment plan; agreeing to pay the sum of $60, by installments of $3 per month after the first payment of $12. The plaintiff claims that on the 19th day of October, 1896, the defendant took the machine from her on the pretext of having it repaired, promising to return it, and that it has never been returned. The defendant, it is conceded, was and is the agent of the Singer Manufacturing Company, and as such took the machine; the claim being made on defendant’s behalf that the plaintiff had defaulted in her payments, and that for that reason they kept it, and have refused to deliver it up until the balance of $12 past due on the purchase price is paid. The sale was a conditional one, and at the time the plaintiff executed an instrtiment which was put in evidence, which is in the form of a lease. By it plaintiff agreed to make the monthly payments promptly, and it was mutually agreed that the title should not vest in the plaintiff until the rentals paid should amount to the sum of $60. It is conceded that the sum of $60 had not been paid, and that there had been a default in the payment prior to the refusal of the company to surrender the machine. This in itself would bar a recovery in the action, because the plaintiff was neither the owner nor entitled to the possession of it.

There is another serious objection to the judgment: The defendant was concededly the agent of the Singer Manufacturing Company-The plaintiff says that several times she complained of the condition of the machine to the company, and that finally the defendant took it for the purpose of having it repaired. In all this he was acting for the company. He so testifies, as does also his superior, the general agent of the company. In fact, the plaintiff testifies that she dealt with Mr. 'Conklin as the agent of the company; and the facts all show that the defendant acted, with respect to the machine, with knowledge of the plaintiff, as the agent of the company, and within the scope of his employment, and not for himself. An action to recover, the property, or for damages, should have been brought against the principal. Shotwell v. Few, 7 Johns. 302; Cobb v. Dows, 10 N. Y. 335; McMorris v. Simpson, 21 Wend. 610; Burns v. Railroad Co. (App. Div.) 38 N. Y. Supp. 856, and cases there cited. It was not disputed that the property was taken to the company’s office at Newburg, and kept there by the defendant’s principal since.

The complaint asked judgment for the possession of the property and for $25 damages. The judgment awards the possession of the machine to plaintiff, and also the sum of $48 damages.. This was erroneous. The plaintiff proved the value of the machine, but did not prove any amount of damages for its unlawful detention. She was then only entitled to recover, if anything, the possession, or its value, not both. For these reasons the judgment must be reversed.

Judgment reversed.  