
    Manufacturers Hanover Trust Company, Appellant, v. Peter Nascarella, Respondent.
   Judgment unanimously reversed on the law and on the facts, without costs, and a new trial ordered as a matter of discretion. The ease was submitted to Trial Term on an agreed statement of facts. Plaintiff, the assignee of a, note and a conditional sales contract for an automobile, repossessed the car after defendant bad defaulted in payments. Defendant made a tender of the installments in default plus the expenses of retaking. The tender was refused. The tender was made more than 16 days after the retaking. Trial Term found that the tender was proper. Had it been made within the statutory period of 10 days this finding would have been correct (Personal Property Law, § 78; Clark v. Tri-State Discount Go., 151 Mise. 679). If the tender was not made pursuant to the statute, plaintiff, having accelerated the payments due to the default, could refuse it. Trial Term found that the parties did not rely on the 10-day time limitation. The difficulty with this finding is that nothing in the agreed statement gives it support. The stipulated facts do not cover this factor at all and the question of what the parties relied on cannot be answered from any fact or inference from any fact in the agreed statement. In addition, we are also of the opinion that there is a question as to whether the defendant, having transferred his interest in the vehicle to a third party, was entitled to redeem, and that the stipulated facts are not dispositive of all the issues pertinent to such question. In the interest of justice we remand the ease for a new trial either by stipulating further facts or, if this is not done, by taking testimony. Concur — McNally, J. P., Stevens, Eager, Steuer and Witmer, JJ.  