
    Louis Mendelson and Louis Tannenbaum, Respondents, v. James D. Irving and Others, Appellants, Impleaded with Charles E. Bowman, Defendant.
    First Department,
    February 7, 1913.
    Conditional sale — right of vendor to take possession of property under contract of sale—effect of void writ of replevin. •
    A contract of sale provided that title to the property should remain in the vendor until “full payment in cash” was made; that promissory notes should not be considered as payment; and if default were made in the payment of any part of the purchase price, “ whether evidenced by promissory notes or otherwise,” the vendor had the right to retake the property with or without force and with or "without legal process, and retain the portion of the purchase price then paid. Upon the default of the vendees in making cash payments under the contract and in payment of notes subsequently given the vendor replevied the property and refused to accept a surety company’s bond for its return offered by the vendees.
    
      Held, that, although the writ of replevin was void, the court having no jurisdiction to issue it, the vendors had a right to take possession of the property by virtue of the terms of the contract of sale; and a judgment holding them liable for compensatory and punitive damages should be reversed.
    The right to take possession of personal property without legal process is not lost by the use of void legal process.
    Appeal by the defendants, James D. Irving and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of April, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of May, 1912, denying the defendants’ motion for a new trial made upon the minutes.
    
      Charles A. Wilson, for the appellants Irving and Grosse.
    
      Francis E. Neagle, for the appellant A. H. Andrews Company.
    
      Harry M. Marks, for the respondents.
   McLaughlin, J.:

On the 23d of March, 1910, the A. H. Andrews Company, a foreign corporation having a branch office in the city of New York, entered into a written contract with the plaintiffs for the sale and delivery to them of 298 chairs to be thereafter installed in the plaintiffs’ moving picture establishment in Brooklyn. The contract provided that the purchase price should be $447, of which $50 was to be paid at the time the order for the chairs was sent in, and the balance when they were installed; that title to the chairs should remain in the Andrews Company until full payment in cash ” was made; that if promissory notes were given on account of the purchase price they were not to be considered as payment, but merely as evidence of the indebtedness; and if default were made in the payment of any part of the purchase price, “ whether evidenced by promissory notes or otherwise,” the Andrews Company had the right to retake the chairs with or without force and with or without legal process, and retain the portion of the purchase price then paid.

The chairs were delivered and installed in June, 1910. Plaintiffs did not pay for them, nor had they up to the second of August paid anything towards the purchase price except $100. On that day they paid an additional $100 and gave two promissory notes for the balance. Each note was for $123.50 and bore interest at the rate of eight per cent, one being payable on September first and the other on October first following. The notes were not paid when they became due, nor any part of them, and on the 13th of October, 1910, the Andrews Company commenced an action against these plaintiffs in the Municipal Court of the city of ¡New York to recover the purchase price, and on the same day obtained a writ of replevin by which the marshal, acting under the direction of the defendant G-rosse, took possession of the chairs and delivered them to the defendant Bowman, with whom they were stored in the name of the Andrews Company. Two days later the plaintiffs requested the return of the chairs and offered a surety company’s bond to secure the payment of the amount remaining due. The request was refused, and thereupon the plaintiffs obtained an order of the Municipal Court vacating the writ of replevin and directing any person who held possession of the chairs to return them to the plaintiffs. On the same day one of the plaintiffs, together with the marshal who had executed the writ, demanded the chairs from Bowman, but he, at the instigation of the defendants Irving and G-rosse, who were representing the Andrews Company, refused to deliver them. A second demand for the possession was subsequently made, and on its being refused the plaintiffs caused Bowman, Irving and Grosse to be adjudicated in contempt of court. The chairs were then returned to the plaintiffs, who set them up in their establishment and they are still there. They have never been paid for, and nothing has since been paid upon the notes.

At the trial it was conceded that the writ of replevin was void, the court not having jurisdiction to issue it; but the defendants contended they had the right to take possession of the chairs by virtue of the terms of the contract of sale. The court submitted to the jury the question whether the delivery and acceptance of the notes had not effected a payment of the amount due under the contract, thus abrogating the vendor’s right to retake possession upon a default in payment. The jury found in favor of the plaintiffs and awarded as against the defendants G-rosse, Irving and the Andrews Company §500 compensatory damages and §1,700 punitive damages, making §2,200 in all. „ The action was discontinued against Bowman, the warehouseman. Judgment was entered accordingly, from which the Andrews Company, Irving and G-rosse appeal.

A bare statement of the facts would seem to be sufficient to indicate that the judgment appealed from is erroneous. The Andrews Company has never been paid for its chans. The title was in it. The contract gave it the right to take them in case the purchase price were not paid, with or without force, and with or without legal process. It did what the contract gave it the right to do and yet finds itself with a judgment against it for $2,200, because it did so. It was erroneous to submit to the jury the question whether the notes had been taken in payment and by reason thereof the vendor’s rights under the contract abrogated, because it was expressly provided in the contract, if notes were given, they should not be considered as payment, but merely evidence of the indebtedness. The contract could not be destroyed in this way and the plaintiffs now concede that fact, but contend that the Andrews Company did not assume to take possession of the chans by virtue of the contract, but by virtue of a writ of replevin which was void. If the writ, as the parties concede, were void by reason of want of jurisdiction of the court to issue it, then the marshal, when he took possession of the chans, did so as the agent of the Andrews Company. (Day v. Bach, 87 17. Y. 56; Kerr v. Mount, 28 id. 659; Hall v. Waterbury, 5 Abb. N. C. 374.) The Andrews Company had the right to the possession of the chairs and it is of no importance how it obtained pos session. The evidence offered on the part of the plaintiffs themselves established that they had never paid for the chairs and by reason of that fact the Andrews Company had a right to take them when it did. The contract expressly provided: “In case default shall be made in the payment of the purchase price (whether evidenced by promissory notes or otherwise) aforesaid, or of any part thereof or the interest thereon, on the day or days respectively on which payments shall become due and payable, * * * the party of the first part, its administrators or assigns, or any of them, shall thereupon have the right to take immediate possession of said property * * * with or without force, or process of law.”

If one has the right to take possession of personal property without legal process, it is difficult to imagine upon what theory he could be deprived of that right, if he attempted to exercise it, by legal process which subsequently turned out to be void. In either case plaintiffs’ position would be precisely the same. Giving to the plaintiffs’ evidence the most favorable consideration possible, the. complaint should have been dismissed at the close of plaintiffs’ case, or a verdict directed in favor of the defendants at the close of the whole case, but as no such motion was made at the close of the whole case, the judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellants to abide the event.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.  