
    William Grueneberg, Respondent, v. William G. Schol, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Contracts — provision that title shall remain in vendor until full payment of purchase price — fraud—action under section 139 of Municipal Court Act.
    Where the written contract for the sale of a piano provided that the title should remain in the vendor until full payment of the purchase price, an action is maintainable under section 139 of the Municipal Court Act to foreclose a lien for instalments of the purchase price or rental then due and unpaid, as the statute provides that the written agreement shall be a lien upon the chattel.
    Where in said action issues of fact were raised as to whether there was fraud in the contract and whether a new contract was made and breached, the exclusion of evidence offered by defendant on such issues, on the ground that defendant’s only remedy was to return the piano, is such error as calls for reversal of a judgment in plaintiff’s favor.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered in Savor of the plaintiff, foreclosing a vendor’s lien upon a piano sold to the defendant by the plaintiff.
    
      Jetmore & Jetmore (DeForest Jetmore, of counsel), for appellant.
    Henry Silverman, for respondent.
   Page, J.

The plaintiff sold a piano to the defendant under an agreement whereby the defendant was to pay monthly instalments as rental until $1,500 was paid, at which time title to the piano should pass to the defendant. This action was brought under section 139 of the Municipal Court Act, to foreclose the plaintiff’s lien upon the piano for instalments of the purchase money or rental then due and unpaid. The appellant claims that because the agreement under which he held the piano provided that title should remain in the plaintiff until full payment of the purchase price and because the plaintiff could not properly have a lien upon his own property, no action to foreclose a lien would lie. There is no merit in this contention. Section 139 of the act expressly refers to a hiring of personal property, where title is not to vest in the person hiring until payment of a certain sum ” and states, For the purpose of this section an instrument in writing as above stated shall be deemed a lien upon a chattel.” This language is explicit and the section clearly confers the remedy here adopted by the plaintiff to the exclusion of all others in the Municipal Court.

There is another ground, however, upon which the judgment must be reversed. The appellant set forth in his bill of particulars that the contract of sale was induced by fraudulent representations of the plaintiff’s agents and that upon discovering the fraud the defendant offered to return the piano upon receipt of the $100 deposit which he had paid, and that thereupon the plaintiff agreed to repair the piano and put it in first class working order or replace it with a new one if the defendant would continue to pay his instalments; that the defendant thereafter paid $400 more upon the piano, but the plaintiff failed to fulfill the agreement to the damage of the defendant in the sum of $400. At the trial the defendant gave evidence of representations made by the plaintiff’s agent before the sale that the piano was new and in good working order, and would run for a long time without repairing. After the piano had been run for only a few hours it became out of order and thereupon the defendant told the plaintiff to take it back and refused to pay any more money on it, whereupon the plaintiff said he would repair the piano or replace it with a new piano if the defendant would continue to pay his instalments. This evidence was stricken out and refused by the learned trial justice upon the ground that the defendant’s only remedy was to return the piano. This was clearly error. At the time of the discovery of the fraud the defendant had a right to rescind the contract and recover back the money he had paid. The defendant was entitled to prove that in consideration of his retaining the piano and continuing under the contract the plaintiff then agreed to repair or replace it, and failed to do so, to the defendant’s damage. Issues of fact were raised as to whether there was fraud in the original contract and whether the new contract was made and breached, and the evidence offered by the defendant upon these issues should have been received.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  