
    Margaret Seabott, Respondent, v. John Wanamaker, New York, Appellant.
    Second Department,
    November 13, 1914.
    New York city—jurisdiction of Municipal Court — action against a conditional vendor who has failed to comply with section 65 of the Personal Property Law.
    An action by a vendee against a vendor to recover the amount paid on an article sold, upon condition that the title thereto should remain in the vendor until the payment of the purchase price, the vendor having failed to comply with the requirements of section 65 of the Personal Property Law, arises “on a contract of conditional sale of personal property,” and cannot be maintained in the Municipal Court of the city of New York.
    Appeal by the defendant, John Wanamaker, New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of June, 1914, denying its motion to strike out certain items of the bill of costs as retaxed from the judgment.
    
      Richard Ely [George Dyson with him on the brief], for the appellant.
    
      Fullerton Wells, for the respondent.
   Stapleton, J.:

The plaintiff’s damages, sixty-five dollars, were recovered in an action determined in the Supreme Court. The plaintiff resides in the city of New York. The defendant is a domestic corporation having an office in the city of New York. It appeared in the action. The action was brought by a vendeeagainst a vendor to recover the amount paid on an article sold upon condition that the title thereto should remain in the vendor until the payment of the purchase price, the vendor having failed to comply with the requirements of section 65 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45).

Upon this state of facts the clerk taxed a full bill of costs, and on review by the Special Term the items taxed were

allowed. It is from the order entered upon the motion for a new taxation that this appeal is taken.

If the Municipal Court of the City of New York had jurisdiction of the person and of the subject-matter of the action, the plaintiff was not entitled to costs. (Code Civ. Proc. § 3228, subd. 5.)

Jurisdiction of the person is correctly conceded.

The Municipal Court has jurisdiction in “ An action to recover damages upon or for breach of contract, express or implied, other than a promise to marry, where the sum claimed does not exceed five hundred dollars, exclusive of interest and costs.” (Mun. Ct. Act [Laws of 1902, chap. 580], § 1, suhd. 1, as amd. by Laws of 1905, chap. 513.) Section 139 of the act (as amd. by Laws of 1910, chap. 542) reads: “No action shall he maintained in this court, which arises on a contract of conditional sale of personal property; a hiring of personal property, where title is not to vest in the person hiring until payment of a certain sum; or a chattel mortgage made to secure the purchase price of chattels; except an action to for-close [foreclose] the hen, as provided in this article. For the purpose of this section an instrument in writing as above stated shall be deemed a lien upon a chattel. Provided, however, that an action may he maintained to recover a sum or sums due and payable for instalment, payment or hiring, but in such cases no order of arrest shall issue.”

The question presented depends upon the proper classification of the action, i. e., whether it is one to recover damages upon an implied contract where the sum claimed does not exceed $500, that is, an implied promise to fulfill an obligation imposed by law (Steamship Co. v. Joliffe, 2 Wall. 450; Norton v. Coons, 3 Den. 130, 134; American Society for Prevention of Cruelty to Animals v. City of Cohoes, 42 Hun, 654; 4 N. Y. St. Repr. 808; Cohen v. Small, 120 App. Div. 211; Empire State Surety Co. v. Nelson, 141 id. 850), or whether it arises on a contract of conditional sale of personal property.

I think that, independently of the contract, the statute does not impose an obligation upon which an implied promise could he established, but that it reserves to the vendee a right which is as much a part of the contract upon condition as if it were written into it. (Strauss v. Union Central Life Ins. Co., 170 N. Y. 349, 356; Crowe v. Liquid Carbonic Co., 208 id. 396, 402.)

The action, therefore, arises on a contract of conditional sale of personal property. No such action shall be maintained in the Municipal Court of the City of New York except for specified relief, and the relief sought here is not among the specified exceptions.

The order should be affirmed.

Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.  