
    Henry Fennikoh, Appellant, v. Thomas F. Gunn, One of the City Marshals of the City of New York, Respondent.
    
      •Contract — when the title to a grocery business does not pass to a vendee — levy under an execution—failure to file a conditional contract of sale.
    
    An agreement recited: “For and in consideration of the sum of one dollar, the party of the first part sells unto the party of the second part, upon conditions hereafter named, all the rights, title and interest of Grocery Store No. 116 Berry Street, Brooklyn. The parties of the second part shall devote their time and energy to the attendance and care of the said Grocery Store. All purchases of.stock shall be made by them only upon approval of party of first part. The purchase price of said business shall be Two Thousand and Two Hundred dollars, §2,200, payable every month, for which the party of the second part shall give demand notes for §50 each. The parties of the second part .also agree to pay to party of the first part,, once every week, all money due for goods purchased by them in the name of the party of the first part, and party of the first part return receipted bills of all said goods purchased. The parties of the second part shall pay the monthly rent due, also all other expenses necessary to properly conduct the business. The party of the first part shall have the ■privilege of purchasing all necessary goods from the parties of the second part at wholesale price, only though until the above amount be paid. The parties of the second part shall always maintain the equal amount of stock to warrant the payment of any deficiency that may arise in the payments as agreed. The parties of the second part shall remain in peaceful possession as long as they pay to the party of the first part all moneys due and keep the stock in as good condition as when received by them. The party of the.first part agrees to give to parties of the second part a free and clear bill of sale when total amount of Two Thousand two hundred dollars, §2,200, is paid in full.”
    
      Held, that the agreement constituted a contract of conditional sale .and vested in the vendees no leviable interest in the property — certainly so where the vendees paid no part of the notes given under the terms of the instrument.
    When the failure to file1 the instrument, even if such filing were necessary, is not available to a city marshal levying upon the goods, considered.
    Appeal by the plaintiff, Henry Fennikoh, from, a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 2d day of October, 1900, dismissing the plaintiff’s complaint upon the merits.
    
      John P. Donnelly, for the appellant.
    
      William J. Bogenshutz, for the respondent.
   Jenks, J.:

The plaintiff appeals from a judgment of the Municipal Court, dismissing his action for replevin on the merits. The action is against a' city marshal, who, in August, 1900, levied under an execution against one Mohneke upon certain goods and chattels in a grocery shop. In May, 1900, the plaintiff, who was the owner thereof, executed the following agreement:

“ This agreement, entered into this 8th day of May, 19.00, between H. Fennikoh, of the Borough of Brooklyn, County of Kings, City and State of New York, party of the first part, and Louis Mohneke and Henry Mohneke, of the same place, parties of the second part. For and in consideration of the sum of one dollar, the party of the first part sells unto the parties of the second part, upon conditions hereafter named, all the rights, title and interest of Grocery Store No. 116 Berry Street, Brooklyn. The parties of the second part shall devote their time and energy to the attendance and care of the said Grocery Store. All purchases of stock shall be made by them only upon approval of party of first part. The purchase price of said business shall be Two Thousand and Two Hundred dollars, $2,200, payable every month, for which the party of the second part shall give demand notes for $50 each. The parties of the second part also agree to pay to party of the first part, once every week, all money due for goods purchased by them in the name of the party of the first part, and party of the first part return receipted bills,of all said goods purchased. The parties of the second part shall pay the monthly rent due, also all other expenses necessary to properly conduct the business. The party of the first part shall have the privilege of purchasing all necessary goods from the parties of the second part , at wholesale price, only though until the above amount be paid. The parties of the second part shall always maintain the equal amount of ~ stock to warrant the payment of any deficiency that may arise in the payments as agreed. The parties of the second part shall remain in peaceful possession as long as they pay to party of the first part all moneys due and keep the stock in as good condition as when -received by them. The party of the first part agrees to give to parties of the second part a free and clear bill of sale, when total amount of Two Thousand two hundred dollars, $2,200 is paid in full.”

The notes had been given aiid the Mohnekes entered into possession under the agreement. I think that the intention of the parties contemplated only a conditional sale until the payment of the purchase price. The provision in the agreement that when that price is paid in full a bill of sale will be given is inconsistent with the claim that the title was to pass when the agreement was made (Boon v. Moss, 70 N. Y. 465, 473), and the use of the term “ sell ” does not necessarily import an executed contract. (Anderson v. Read, 106 N. Y. 333.) The plaintiff testified that no part of the notes had been. paid, so, therefore, there is no complication due to a partial payment of the consideration, while the mere delivóry of the notes itself is not enough to vest the title, in face of the express provision of the agreement that a bill of sale would be executed when the, purchase price was paid. (Campbell Printing Press & Mfg. Co. v. Walker, 114 N. Y. 7.) It was entirely permissible for the parties to enter into this transaction, which contemplated the delivery of the chattels to the vendee. (Cole v. Mann, 62 N. Y. 1; Prentiss Tool & Supply Co. v. Schirmer, 136 id. 305.)

Even if "there was not compliance with section 112, article 9, of. the Lien Law, it does not appear that the execution creditor came within its purview, while neither he nor the sheriff was a purchaser for value simply by reason of the seizure. ( Wise v. Grant, 140 N. Y. 593, 596.) Assuming that the instrument can be regarded as a chattel mortgage, and so subject to the provisions of sections 90 and 95 of article 8 of the Lien Law (Chap, 418, Laws of 1897), and that it was not filed, I fail to see how this would avail the creditor, for it does not appear when Mohneke’s debt was contracted, or but that his creditor was merely a creditor at large. (Bullard v. Kenyon, 49 N. Y. St. Repr. 132; Button v. Rathbone, Sard & Co., 126 N. Y. 187, 191.) Therefore, he is in no position to raise the point; ' I think that it was not shown that the judgment debtor had-any leviable interest in the property, and, therefore, the action -will lie. (Burchell v. Green, 6 Misc. Rep. 236; affd., 80 Hun, 602.)

The judgment should be reversed.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. ’ .  