
    Jesse H. Leonard, Respondent, v. Caroline Harris, Appellant.
    Third Department,
    November 15, 1911.
    Conditional sale —vendor obliged to comply with Lien Law of 1897 to ' protect himself against a pledgee — piano purchased under a conditional .contract left with a boarding-house keeper by the husband of the contract vendee — pledge.
    Assuming that a vendor of a piano sold under a contract of conditional sale was not obliged under chapter 315 of the Laws of 1884, as amended, to file a copy of the contract or deliver a duplicate thereof to the purchaser in order to protect his title as against a pledgee of the property, the Lien Law (Laws of 1897, chap. 418) made it necessary for him to do so in order to protect his title to property sold under such a contract prior to its passage as against a pledgee whose pledge was acquired after the passage of the statute of 1897.
    Where a person boarding with his wife and children leaves with the boarding-house keeper a piano which, his wife had purchased under a contract of qonditional sale, and in which he had no interest, together with other furniture, telling the hoarding-house keeper that the piano and furniture should remain with her until his debt for board was paid, and the wife never questions the transaction, it is a necessary implication in the absence of evidence to the contrary that the piano is pledged with the consent of the wife, or that the husband had such an interest in the property that he had the right to pledge it. Hence, as. between the boarding-house keeper and the conditional vendor, the former is -a pledgee of the piano within the meaning of the General Lien Law of •1897.',
    Smith, P. J,, dissented, with opinion.
    Appeal by the defendant, Caroline Harris, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of June, 1911, affirming a judgment of the City-Court of the city of Albany in favor of the^ plaintiff entered in the office of. the clerk of said City Court on the 16th day of December, 1910. , f • '
    The action was brought to recover a piano sold by the plañir tiff to Mrs. Mann. The sale took place April' 30, 1895. The parties traded pianos and •- Mrs. Mann gave a note- for the difference in value, $225, which note recited that it was given for a Crown piano No. 609.0, which is to remain the property of. the plaintiff until the note is paid. The note was renewed November 23, 1906, for $180, the balance unpaid, with a like provision as to the title of the piano.
    Arthur J. Mann, Mrs. Mann, his wife, and their son became boarders at the boarding house of Mrs. Jane Davis in Albany and he brought with him the piano and furniture for his rooms. At the time he removed from her premises, June,- 1898, he owed her for board of himself, wife and son, $445, which he was unable to pay and he told her that the piano and furniture should remain with her until the' debt was paid. No part of the debt was ever paid and the property remained with Mrs.
    Davis, no claim being made by any person upon her for it. About the year 1905 Mrs. Davis gave the piano to the defendant, who was her daughter-in-law, and the daughter-in-law removed it to her premises. About a year later she returned with the piano to the boarding house of Mrs. Davis and is now living there. The plaintiff demanded the piano of her, and she refused to deliver it. He thereupon brought an action of replevin, and by the judgment appealed from has been awarded the possession, with costs.
    
      A. Page Smith, for the appellant.
    
      Nathaniel Niles, for the respondent.
   Kellogg, J.:

At the time the piano was sold the transaction was governed by chapter 315 of the Laws, of 1884, as amended by chapter 488 of the Laws of 1885 and chapter 420 of the Laws of 1894, which substantially provided that a conditional sale of property should be void as against subsequent purchasers and mortgagees in good faith unless the contract or a copy of it was filed in the office of the town or county clerk, but that such requirement should not apply to household goods, pianos and other specified articles, provided the contract was executed in duplicate, and one duplicate was delivered to the purchaser.

The contract was not filed, and a duplicate was not delivered to the purchaser, but it is assumed by counsel that a pledgee of the property is not within the protection of the statute accorded to purchasers or mortgagees. The Lien Law (Laws of 1897, chap. 418) consolidated the various' statutes relating to conditional sales, mortgages and other liens on chattels, making no change necessary to mention, except pledgees are given the same protection as purchasers and mortgagees..

If we assume that a pledgee of the piano was not entitled to the benefit of the former statute, clearly the law of 1897 requiring (§ 112 et seq., as amd.) the vendor to file the contract of conditional sale or to furnish a duplicate to the purchaser applies and the plaintiff was then required to comply with the provisions of- the.statute in order to hold the property against subsequent purchasers, pledgees or mortgagees in good faith.. (Stevenson Brewing Co. v. Eastern Co., 22 App. Div. 523; affd., 165 N. Y. 634; Vincinguerra v. Fagan, 57 Misc. Rep. 224.)

I think the evidence clearly shows that Mrs. Davis was a pledgee .in good faith of the piano. The fact that it was brought to her place by the husband, ostensibly as his own, that the wife and husband removed from the premises leaving the piano there and that the husband pledged it for the board bill of himself, Wife and child, and that the wife has. never questioned the transaction or claimed the piano, carries with it a necessary Duplication, in the absence of evidence to the contrary, that it was pledged with the consent of the wife or that the husband had such an interest in the property that he had the right to.pledge it. Therefore, as between the plaintiff and Mrs. Davis the condition attached to the sale. reserving title in the plaintiff was void, and if Mrs. Davis could retain the possession of the piano against him, the defendant may avail herself of the same defense.

• Mrs. Davis, under section 71 of the Lien Law (Laws of 1897, chap. 418), acquired a lien upon the piano for the hoard which she was furnishing from day to day to Mrs. Mann, her husband and son. (Waters & Co. v. Gerard, 189 N. Y. 302.) The alleged pledge was in fact a mere recognition of the hen and perhaps affected somewhat the manner in which it might he enforced. With the piano were many articles of furniture. These articles and the piano were left for many years with Mrs. Davisand many of them were practically used up, and the conduct of the parties indicates an abandonment of the property to her for the bill and an apparent understanding that she was the owner; the manner hi which the lien or pledge should be enforced was, therefore, unimportant. It cannot, therefore, be questioned that whatever interest Mrs. Davis had in the piano was acquired for a present consideration moving from her, and she was in a position of a bona ficle pledgee of the property,

The judgment of the City Court and of the County Court are, therefore, reversed upon the law and the facts, with costs to the defendant in all the courts.'

All concurred, except Smith, P. J., dissenting in opinion.

Smith, P. J. (dissenting):

Assuming for the argument that chapter 418 of the Laws of 1891 was retroactive, so as to require the filing of a conditional contract of sale in order to protect the conditional vendor from a subsequent pledge of a piano in good faith, the-difficulty with defendant’s position is that neither she nor the pledgee, from whom she derived title, was a purchaser or pledgee in good faith. It is conceded that the defendant got her right by gift from her mother-in-law, Mrs. Davis. Mrs. Davis took the piano under pledge for an antecedent debt, and, therefore, is not protected by the statute. (Harder v. Plass, 57 Hun, 541; Russell v. St. Mart, 83 App. Div. 545.) The plaintiff, therefore, has not lost his right by failing to file his contract of sale. The only other objection that can be urged against the plaintiff’s right is his delay in taking possession of the piano. . There certainly can be no claim of title to the piano by the right of adverse possession, and the vendee having forfeited her rights thereunder by failure to pay according to the terms of the contract, the plaintiff had the clear right to replevin the piano, and the judgment should be affirnied, with costs.

Judgment of the City Court and County Court reversed- on law and facts, with costs to defendant in all courts.  