
    Samuel Franck Edmead, Appellant, v. Frank P. Anderson and Maude E. Anderson, Doing Business under the Firm Name and Style of Anderson & Company, Respondents.
    Second Department,
    March 22, 1907.
    Conditional sale — effect of retaking property.
    When the vendor under a conditional sale retakes the property on the default of the vendee, he is not entitled to both the property and the purchase price. Under such circumstances a claim for the purchase ppce is not available as a counterclaim.
    Appeal by the plaintiff, Samuel Franck Edmead, from a judg- . ment of the Municipal Court of the city of New York in favor of the plaintiff for the sum of twenty-eight dollars and thirteen cents.
    
      S. Franck Edmead, for the appellant.
    
      Henry A. Heiser, for the respondents.
   Woodward, J.:

The plaintiff sued for a fee for legal services alleged to be due to him from the defendants. The defendants in their answer set up that the plaintiff’s services were not worth the sum of fifty dollars, the amount claimed in the complaint, and denied the agreement to pay the same. They also interposed a counterclaim for thirty-five dollars, made up of two items, twenty-four dollars for four months’ rent of a piano' by plaintiff from defendants, and eleven dollars for cartage thereof, the piano having been sold by the defendants to the plaintiff on the installment plan, ten dollars having been paid upon its delivery. The plaintiff had defaulted on four monthly payments on the contract and the defendants had retaken the piano under the same contract, the cartage being for the delivery and taking away of the piano.

It is entirely evident from the amount of the judgment that the court allowed the plaintiff the full amount of his claim of fifty dollars, and offset against it the counterclaim of thirty-five dollars heretofore described. I think this was error. It seems to be the settled law of this State, that the vendor under a conditional sale cannot have both the property and the purchase price, and in this case the defendants had elected to retake the piano, and whatever rights they may have against the plaintiff under this contract for the piano they cannot be enforced here. (White v. Gray’s Sons, 96 App. Div. 156, and cases there cited.)

The judgment of the Municipal Court should be reversed and a new trial granted, with costs to the appellant to abide the event,

Jenks, Gaynob and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, with costs to the appellant to abide the event.  