
    The Gormully & Jeffery Manufacturing Co., Appellant, v. George W. Catharine, Respondent.
    (Supreme Court, Kings Special Term,
    November, 1898.)
    1. Municipal Court of New York city — Requisites and form of order opening default.
    An order, vacating a judgment of a Municipal Court of the city of New York, taken against a defendant by default, is void where it fails to state the grounds for such vacation; and such an order is wholly unauthorized where it vacates the judgment absolutely and fails to set the case down for pleading, hearing or trial, as the plaintiff is thereby deprived, not only of the judgment, but also of a trial on the merits.
    
      2. Conditional sale — Double remedy on contract and in tort.
    
      Semble that, under an installment lease or conditional bill of sale of a bicycle, where the party in possession not only fails to complete his required payments but also fails to surrender possession on demand, the recovery by the owner of the machine of a judgment for the rent, does not, while that judgment remains unsatisfied, preclude him from maintaining another action as for a conversion, to recover the bicycle or its value.
    
      Appeal from an order of the Municipal Court of the city of Mew York, borough of Brooklyn.
    The judgment vacated by the order appealed from was entered upon the defendant’s failure to appear.
    The action was for the value of a bicycle which had been delivered to the defendant by plaintiff under an installment lease (or conditional bill of sale), defendant having failed to complete his payments, and having also failed to deliver possession of the bicycle upon plaintiff’s demand.
    Henry L. Maxson, for appellant.
    Thomas F. Smith, for respondent.
   Garretson, J.

This is an appeal by the plaintiff from an order dated July 29, 1898, made by Cornelius Ferguson, Esq., a justice of the Municipal Court of the city of Mew York, upon motion of the defendant vacating a judgment of said court for the second district of the borough of Brooklyn, entered on July 18, 1898j in favor of the plaintiff and against the defendant for the sum of $49.07 damages and costs, upon the default of the defendant to appear or plead.

We might, with propriety, reverse the order appealed from solely for noncompliance with the statute in that it does not recite and contain the grounds for vacating the judgment and, therefore, fails to present any question for our consideration and review. The Greater Mew York Charter, § 1369; chap. 410, Laws 1882, § 1367, as amended by chapter 748, Laws 1896.

Besides, the order assumes to absolutely vacate the judgment and omits to set the cause down for pleading, hearing, or trial, thus depriving the plaintiff, not only of the benefit of the judgment, but of a trial upon the merits, which is wholly unauthorized and in violation of the plaintiff’s rights. Id.

Without, however, placing the disposition of the appeal wholly upon the grounds above stated we are of the opinion that the order appealed from should be reversed upon the merits.

Assuming that the judgments entered upon the defendant’s defaults on May 19, 1898, and July 15, 1898, are founded upon the same written instrument, the plaintiff had the right to sue for rent due and for damages for the conversion of the bicycle.

The defendant was liable upon his agreement to pay the rent, and as the title to the property still remained in the plaintiff he was liable for the value thereof, as for its conversion after noncompliance with the plaintiff’s demand for its possession.

It does not appear what the precise terms of the contract are, for the instrument is not part of the papers on this appeal, and could not be, as each judgment was entered upon proof of service of the summons and of a copy of a verified complaint, and we can only consider the allegations-of the several complaints as disclosing the nature of the causes of action.

But assuming, also, that the instrument was a conditional bill of sale, and that the title and ownership of the bicycle were to remain in the plaintiff, althoiigh. the bicycle was delivered into the possession of the defendant, still the plaintiff had a right of action to recover the money agreed to be paid by the defendant according to his contract, and another right of action to recover the property, or the value thereof, upon failure of the defendant to deliver the same after demand therefor. Brewer v. Ford, 54 Hun, 116; 59 Hun, 17; affirmed, 126 N. Y. 643; National Cash Register Co. v. Coleman, 85 Hun, 125. In the case last above cited it was held that the recovery by the vendor of a judgment for the unpaid portion of the purchase price due on property sold by a conditional bill of sale, after the taking of the possession thereof by the vendee, does not affect the title of the vendor in the property as long as the judgment remains unsatisfied.

The defendant’s position at this time arises wholly from his indifference to the actions brought against him and his allowing the judgments therein to go against him by default. As to whether he should now be relieved of his defaults and be permitted to defend the actions upon the merits, and upon such terms as may be just, we are not called upon to" say, and do not express any opinion.

For the reasons above assigned the order appealed from should be reversed, with costs to the appellant.

Order reversed, with costs to appellant.  