
    Charles Woodman, Appellant, v. The Needham Piano & Organ Co., Respondent.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Municipal Court — Jurisdiction — Conditional sale — Retaking of goods — Action to recover installments paid — Lien Law, § n6 — Waiver.
    The statutory right of action, given by section 116 of the Lien Law as amended in 1900, to the purchaser of goods upon the installment plan, to recover the amount of installments paid in case the vendor or his successor takes back the -goods, is, in effect, for money had and received and does not arise out of a contract of conditional sale and so not within the jurisdiction of the Municipal Court of the city of New York (Municipal Court Act, § 139).
    But the purchaser of a piano upon the installment plan waives such right of action where the contract provides “that if default be made in the promised payments or any of them * * # all payments thereon shall be in full for 'the use thereof
    Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, sixth district, borough of Manhattan.
    W. E, Oglesby, for appellant.
    O. B. Plante, for respondent.
   MacLean, J.

In 190.0, the plaintiff bought a piano from the defendant for $275 payable on the installment plan and defaulted after paying $181 for which sum is this action, under the Lien Law (Laws of 1897, chap. 418, § 116, as amd. by-Laws of 1900, chap. 762) providing that when a purchaser on the installment plan has defaulted and the article is taken back by the vendor or his successor the vendee shall have thirty days to redeem the article but if not redeemed the vendor or its successor thereafter may on due notice to its vendee and within thirty days sell the article at auction, and further if this be not done within thirty days the vendee has an action against the vendor for the full amount paid.

The piano was taken in replevin by the vendor’s assignee, May 5, 1904. Judgment therein was deferred until after the beginning of the present action in the spring of 1905, a circumstance deemed immaterial here. Such an action given by statute in effect as for money had and received, does not seem one which arises on a written contract of conditional sale of personal property ” and, therefore, not maintainable in the Municipal Court. Laws'of 1902, chap. 580, § 139. But the plaintiff seems to have signed, away the right to this statutory and beneficial action by agreeing in writing that if default he made in the promised payments or any of them, the Needham Piano and Organ Company may resume actual possession of said piano and all payments thereon shall be in full for the use thereof.” He was as competent to waive eventual resort to the provision made by statute for his benefit as he was to enter into the agreement at its inception.

Scott and Ditgbo, JJ., concur.

Judgment affirmed, with costs.  