
    Emma Haefelein, Respondent, v. C. Albert Jacob, Doing Business under the Name and Firm of Jacob Brothers, Appellant.
    
      Conditional sale—right to recover the amount paid where the article is not sold within thirty days—the statute conferring it does not apply to contracts antedating its passage — constitutional law.
    
    Chapter 763 of the Laws of 1900, which amended section 116 of the Lien Law (Laws of 1897, chap. 418), providing that where articles sold under a contract of conditional sale are retaken by the vendor, they shall be retained by him for a period of thirty days, at the expiration of which time they shall be sold at public auction, if not redeemed by the vendee, by adding thereto the following provision, *• Unless such articles are so sold within thirty days after the expiration of such period, the vendee, or his successor in interest, may recover of tlm vendor the amount paid on such articles by such vendee, or his successor in interest, under the contract for the conditional sale thereof."’ does not apply to contracts of conditional sale made prior to its enactment.
    
      
      Semble, that i£ it was intended to apply to contracts made prior to its enactment, .it would be unconstitutional as impairing the obligation of the contracts, and could not be sustained on. the theory that, it affects the remedy onty and not the . rights of the parties to the contract.
    Appeal by the defendant, C. Albert Jacob, doing business under the name and firm of Jacob Brothers, from a judgment of the , .'Supreme Court in favor of the plaintiff, entered in the office of the •clerk of the county of Kings on the 6th day of June, 1904, upon the decision, of the court rendered after a trial before the court without a. jury at the Kings County Trial Term.
    
      Thomas Abbott McKennell, for the appellant.
    
      M. Hallheimer,, for the respondent.
   Willard Bartlett, J.:

On the 16th day of April, 1897, the defendant delivered to George Haefelein a piano under a contract for the conditional sale thereof, providing that the title thereto should remain in the defendant as vendor until the purchase price of $250 should be paid, arid providing further for the payment of' such purchase price-partly in •cash at the time when the piano was delivered and partly in monthly payments of $10 each. The vendee paid only $170 on account of the purchase price and the piano was retaken by the vendor by Teason of the vendee’s default under the contract. The vendor did •not, sell the piano or cause the same to be sold within sixty days .after retaking the same ; and the plaintiff brought this suit, as the .assignee of the purchaser, to recover the $170 paid on account of the purchase price.

The action is based on section^ 116 of the Lien Law. ' That .section as originally enacted (Laws of 1897, chap. 418) took' effect ■on September 1, 1897, and read as follows: Whenever articles are sold upon the condition that the title thereto shall remain in the vendor, or in some other person than the vendee, until the payment •of the purchase price, or until the occurrence of a future event or ■contingency, and the same are retaken by the vendor,.or his successor in interest, they shall be retained for a period of thirty days from the time of such retaking and during such period the vendee -or his successor in interest,, may comply with the terms of such, contract, and thereupon receive such property. After the expiration of such period, if such terms are not complied with, the vendor, or his successor in interest, may cause such articles to be sold at public auction.”

By chapter 762 of the Laws of 1900, section 116 was amended by adding thereto the following provision: “Unless such articles are so sold within thirty days after the expiration of such period, the vendee, or his successor in interest, may recover of the vendor the amount paid on such articles by such vendee, or his successor in interest, under the contract for the conditional sale thereof.”

It is to be noted that this provision was not enacted until long after the making of the contract of conditional sale out of which the present controversy has arisen. At the time of the execution of that contract and the delivery of the piano thereunder, the statute applicable to the transaction was chapter 315 of the Laws of 1884, as amended by chapter 601 of the Laws of 1896 (since repealed), which among other things provided as follows : “ In case * * * pianos * * * are sold upon the condition that the titles shall remain in the vendor or some other person than the purchaser, until the payment of the purchase-price, or until the occurring of any future event or contingency, and the same are retaken by the vendor, or by his successor in interest, such property so retaken shall be retained for thirty days by the person by whom or on whose behalf the same has been so taken, during which time the purchaser, or his successor in interest, may fulfill such contract or purchase and shall be entitled thereupon to receive such property. After the expiration of such time the person by whom or on whose behalf the said property has been taken, may proceed to sell the same at public auction, and. out of the proceeds may retain the balance remaining unpaid on the purchase-price and the expenses of storing, advertising and sale thereof; and any surplus remaining shall be paid to the person or persons from whom the property was taken. But no such sale shall be made until after the giving of a printed or written notice of such sale to the person, or persons from whom the said property has been taken, requiring such person or persons to pay such unpaid balance and expenses, and that in case of default in so doing that such property will be sold- to pay the same, at a time and place to be specified in the notice.”

■ The statute as thus in force at the time when the contract was made conferred upon the vendee no right to recover that part of the purchase price which he had paid simply on proof that the vendor had not sold the article retaken within a prescribed.period after retaking the same. The vendee could maintain a suit to recover what he had paid by showing either that he had offered to perform his part of the contract in.full, or that the vendor had put it out of his power to deliver the piano on receiving full payment. (Humeston v. Cherry, 23 Hun, 141.) If, therefore, the plaintiff has any light to maintain this action at all, it arises out of the amendment made to section 116 of the Lien. Law in 1900, as above quoted.- The learned judge at Trial Term held it to be applicable to existing contracts and deemed it unobjectionable on constitutional grounds. “ It simply provides for a sale on notice,” he said, and a penalty for non-Compliance. It relates to existing contracts as well as to future ones. It is the same as lengthening or shortening the notice of sale,.of the like, which would apply to existing contracts.”

I am unable to agree to the view that the amendment of 1900 if applied to contracts made before its enactment affects the remedy only and not the rights of the parties to a conditional sale. So far as ¡contracts are concerned, a remedy is a method or means of redress provided by law for the benefit of the party who has performed or been ready and willing to perform his part of the contract and is available against the party in default. The amendment of .1900 does not create or amplify any remedy in behalf of the vendor ■ in a conditional sale who has fulfilled the contract on his side. It is designed solely for the benefit of the vendee who has refused or failed to perform. It confers upon him a right which he did not possess under pre-existing law, to recover the moneys he has paid on account of the purchase price. As to the constitutional validity of the amendment in its application to transactions occurring after .its adoption there can be no question; but I do not see how it can be held applicable to a prior conditional sale without, impairing the obligation of the contract. An obligation is impaired when it is made worse for either party thereto.” (Randall v. Sackett, 77 N. Y. 480.) I am of opinion that the- provisions, of the amendment of 1900 to section 116 of the Lien Law were not available for the benefit of the vendee in this case or his successor in interest and hence that the present action must fail.

I have treated the transaction relative to the piano as a conditional sale and not a contract of hiring, being convinced that the court below, upon the evidence, was right in so regarding it. (See Jacob v. Haefelien, 54 App. Div. 570.)

The judgment should be reversed and the complaint dismissed.

Woodward, Rich and Miller, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs. 
      
      See Lien Law, § 120.— [Rep.
     