
    James McLean, Respondent, v. Bernard Bloch, Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Sales — Conditional sales — Filing.
    About three weeks after the delivery of a cellar ice house manufactured by plaintiff under a written contract containing a reservation of title in the vendor until full payment of the purchase price, a chattel mortgage covering it was filed and, about two months thereafter, the written contract was filed. In an action of replevin by plaintiff against defendant who purchased the property from the mortgagee who bid it in upon foreclosure of his mortgage, held, that upon the delivery of the manufactured article there arose a sale and plaintiff, having clothed the purchaser with the appearance of ownership and having failed to protect himself in the manner provided by statute, could no longer claim title to the property.
    
      Appeal by the defendant from a judgment of the City Court of the city of New York, entered npon a verdict directed by the court, and from an order denying a motion for a new trial.
    A. P. Fitch, Mott & Grant (C. F. Fox, of counsel), for appellant.
    H. Holljes, for respondent.
   MacLean, J..

On July 15, 1905, by writing, the plaintiff agreed to furnish a Cellar Ice House ” to one Martin for $115, the writing reciting, “ It is also agreed that the legal title to and ownership of said property shall remain in the said James McLean until the entire amount of the purchase price thereof is paid in full ” and, having thereafter manufactured it, delivered it at Martin’s place of business, on or about July 21, 1905. The writing as a “ conditional contract” was filed on October 19, 1905. Meanwhile, Martin executed a chattel mortgage, covering among other things, “ one ice box in cellar,” to one Ruppert as security for a loan, and this was filed August 10, 1905. Thereafter the mortgage was foreclosed; and the property was bought in by the mortgagee who then sold it .to the defendant, who appeals from a judgment, in an action of replevin, entered upon a verdict directed in favor of the plaintiff. To the right of the plaintiff herein to recover, it must be determined that the provisions of the Lien Law, relative to conditions and reservations in contracts for the sale of 'goods and chattels (Laws of 1891, chap. 418, § 112), do not apply to contracts for the manufacture and delivery of goods and chattels, since immediateness of delivery is no longer a requirement. Laws of 1904, chap. 698. No such case has been cited or found, the nearest approach being a dictum, in the case of Graves Elevator Co. v. Callanan, 11 App. Div. 301, 305, wherein, after referring to the recognized law of this State that contracts for the sale of goods to be manufactured do not come within the operation of the Statute of Frauds, it is said, “ By a parity of reason, it seems to me that the contract here does not come within the meaning of the statute providing for filing conditional contracts of sale.” The purpose of the two statutes, however, should not be lost sight of; the one, as originally entitled, “An act for the prevention of Frauds and Perjuries,” though, as sometimes suggested, permitting as much as it has prevented; while “ The reason for the enactment of the law providing for the filing of contracts for conditional sales was to protect those purchasing in good faith articles from those apparently having the title to the same, as evidenced by their possession.” Graves Elevator Co. v. Callanan, supra, 306. So long as the contract under consideration remained executory, it might not be said to be for a sale within the meaning of the Statute of Frauds; but, when the manufactured article was delivered and retained, there then arose an indebtedness for the price agreed to be paid, a sale and manifestly so intended, and, with the provision in the contract for the reservation of title, a conditional sale in fact — as much so as a contract for the rental of a chattel, accompanied by delivery of possession, with reservation of title, and provision for the passing of title at the end of the term upon final payment of the sums agreed .to be paid as rent. Equitable General Providing Co. v. Eisentrager, 34 Misc. Rep. 179, 180. The plaintiff, therefore, having clothed Martin with the appearance of ownership, and having failed to protect himself in the manner by statute provided, should not be permitted to disclaim the real nature of the transaction and pervert the statute to accomplish what it was evidently designed to prevent. The judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildebsleeve and Amend, JJ., concur.

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