
    West Publishing Company, Appellant, v. Maurice B. Gluck, Respondent.
    (Supreme Court, Appellate Term, First Department,
    November, 1915.)
    Conditional sales — action to foreclose lien upon — contract of — breach of — pleading — Personal Property Law.
    Where the complaint in an action to foreclose a lien upon a contract for the conditional • sale of certain books alleged their non-delivery, a decision on appeal overruling a demurrer to the complaint as not stating a cause of action is the law of the case, and where the complaint is dismissed on the ground that plaintiff’s failure to deliver the books was a breach of the contract a judgment entered bn a directed verdict on defendant’s counterclaim for the amount paid on account of the books will be reversed. '
    The seizure and sale by a marshal pursuant to an execution of property the subject of a contract of conditional sale is not a retaking by the vendor under the provisions of the Personal Property Law.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the defendant upon a counterclaim entered upon a directed verdict and also from certain interlocutory orders.
    Watson & Kristeller (Robert S. Kristeller, of counsel), for appellant.
    Maurice B. Gluck, for respondent.
   Page, J.

The action was for the foreclosure of a lien ” upon a conditional sales agreement. At the conclusion of the plaintiff’s case defendant moved to dismiss the complaint. In the course of the argument, as appears from a statement of the justice’s conclusions, inserted in the record but not a part of the stenographer’s minutes, the defendant’s counsel made certain statments of facts which were conceded by the counsel for the plaintiff. Upon these the trial judge dismissed the complaint and directed a verdict for the defendant for the amount paid by the defendant on account of the books.

The theory upon which the complaint was dismissed was that, as the plaintiff had failed to deliver all the books called for by the conditional sales contract, the plaintiff had broken the contract. The complaint alleged the non-delivery of these hooks and the defendant had demurred thereto on the ground that it did not state facts sufficient to constitute a cause of action, the alleged insufficiency being that by reason of the nondelivery of these volumes the complaint, upon its face, showed that the plaintiff had broken the contract.

The demurrer was overruled and the defendant given until January fifth to file an answer. He did not avail himself of the privilege and judgment was given for the relief demanded in the complaint. An appeal was taken therefrom to this court and the judgment was affirmed. Leave to appeal to the Appellate Division was refused by this court and the Appellate Division. The very point upon which the trial judge dismissed the complaint had. been determined adversely to his ruling by this court and that decision was not binding upon him and was the law of this case. It would not be necessary to discuss the appeal from the judgment further. Verdicts should be directed upon statements made in unreported arguments of counsel, but, giving the facts and admissions as stated in the summary their full probative value, they are insufficient to support the judgment.

It seems that the plaintiff issued an execution on the judgment and pursuant thereto a marshal took these books into his possesson. The trial judge construed this as a retaking of the books by the plaintiff in rescission of the contract. The seizure and sale by the marshal pursuant to execution, of the property which is a subject of a conditional sale agreement, is not a retaking by the vendor. The property does not come into his actual or constructive possession but is in the custody of the law. Quattrone v. Simon, 85 Misc. Rep. 357. The judgment must therefore be reversed.

The first order brought up for review herein was an order vacating the judgment and allowing the defendant to answer without the imposition of other terms than an indefinite statement “ matters desired by commission to be stipulated.” The defendant did not avail himself of the privilege of answering extended to him by the court but suffered judgment to be entered. He did not, pending his appeal, obtain a stay of execution. The plaintiff had proceeded under his execution. The court below had no power to vacate this judgment; it was regular and had been affirmed on appeal.

The motion for a commission necessarily falls with the reinstatement of the first judgment.

Bijtjr and Shearn, JJ., concur.

Judgment of June 23, 1915, reversed with .thirty dollars costs, orders reversed and judgment of December 30, 1914, reinstated.  