
    Hugh L. Fox and Others, Appellants, v. Frederick F. Proctor, Respondent.
    First Department,
    February 6, 1914.
    Sale — delivery of goods on approval—Personal Property Law, section 100, construed.
    Section 100 of the Personal Property Law, prescribing the rules for ascertaining the intention of parties as to the time at which the title to goods is to pass to the buyer, applies only where a sale has been agreed upon, subject to the test being satisfactory. That is to say, it applies only to conditional sales of goods and is not applicable where goods have merely been delivered for trial.
    Thus, where a plaintiff delivered goods “ on a thirty days’ trial ’’ and there is no evidence that the parties agreed that they were to be purchased by the defendant if the trial was satisfactory, and he subsequently notified the plaintiff to remove the goods within three days after the expiration of the thirty days, the plaintiff cannot recover their value.
    Appeal by the plaintiffs, Hugh L. Fox and others, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 24th day of June, 1913, affirming a judgment of the Municipal Court of the City of Hew York, borough of Manhattan, first district, in favor of the defendant, rendered after a trial before the court without a jury.
    
      William C. Rosenberg, for the appellants.
    
      Millard F. Tompkins, for the respondent.
   Laughlin, J.:

This action was brought to recover the value of four Multax lamps alleged to have been sold and delivered by the plaintiffs to the defendant. It was conceded that the plaintiffs delivered the lamps to the defendant at his Twenty-third Street Theatre on the 6th day of September, 1911, “on a thirty days’trial;” but there is no evidence tending to show that the parties had agreed that the lamps were to be purchased by the defendant if the trial test was satisfactory.

Plaintiffs relied upon certain provisions of article 5, section 100, of the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], added by Laws of 1911, chap. 571) for the contract of sale. The provisions of that article and section', upon which this contention is based, are as follows:

“ § 100. Rules for ascertaining intention. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. * * *
“When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer — (a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction; (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time.”

The evidence shows that the lamps were not actually installed so that the trial test could commence until the seventh or eighth day* of September, and it also shows that they were taken down and others substituted in their place on the fifth or sixth day of October, and were not thereafter used by the defendant. The seventh of October was Saturday and it was conceded that on Monday, the ninth of October, the defendant notified the plaintiffs to remove the lamps from his premises.

There is no evidence, other than is to be inferred from the facts herein stated, with respect to any agreement with respect to the time for the return of the goods, and, therefore, if the statute applied, the defendant would have a reasonable time after the expiration of the period for the test. Manifestly, it could not be said that the notice to the plaintiffs to remove the lamps was not given within a reasonable time after the expiration of the thirty days.

We are of opinion, however, that the statute only applies to cases in which a sale has been agreed upon, subject to the test being satisfactory. In other words, the statute was intended to apply to conditional sales of goods. The Legislature did not intend to attempt to enforce a sale where the goods have merely been delivered on trial. Goods are often thus delivered with a view to negotiating a sale if the test proves satisfactory. That is the reasonable inference to be drawn from the evidence with respect to the delivery and installation of the property in question.

It follows, therefore, that the judgment should be affirmed, with costs.

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

Determination affirmed, with costs.  