
    In the Matter of Merkel, Inc., Assignor. Sol Feder, Respondent; Monarch Marking System Company, Appellant.
   In a liquidation proceeding pursuant to an assignment for the benefit of creditors, Monarch Marking System Company, which allegedly had leased certain machinery to the assignor, appeals from an order -of the -Supreme Court, Queens County, entered March 22, 1965, which denied its application to compel the assignee to turn over said machinery to it. Order reversed, on the law and the facts, without costs; application granted; and the assignee is directed to turn over the machinery to appellant not later than 20 days after -entry of the order hereon. The agreement to “lease” the machinery to the assignor was made on November 29, 1961 for a five-year period at a total rental of $9,120, payable $912 semiannually. It gave the assignor an option to purchase the machinery at the end of the five-year period for an additional payment of $800. Since the Uniform Commercial Code (L. 1962, ch. 553; eff. Sept. 27, 1964 [see §§ 10-101, 10-105]) is not retroactive, the agreement is governed by the provisions of the former Personal Property Law. We find that the agreement is a conditional bill of sale, which was valid as between appellant (the conditional vendor) and the assignor (the conditional vendee) or its -assignee for the benefit of creditors, despite appellant’s failure to file it (see Personal Property Law, §§ 61, 65; Matter of Pellegrini, 248 App. Div. 526). This finding is not affected by the fact that the assignment for the benefit of creditors was executed on February 3, 1965, i.e., after the effective date of the Uniform 'Commercial Code.

Hill, Acting P. J., and Benjamin, J., concur; Rabin, J., concurs in the result on the grounds that the agreement was a lease, not a conditional bill of sale, and that, in any event, whether it was a lease or a conditional bill of sale, the Uniform Commercial -Code does not apply.

Hopkins, J.,

concurs in the result on the ground that the agreement was a lease, not a conditional bill of sale, and that, therefore, the Uniform Commercial Code does not apply. [45 Misc 2d 753.]  