Strickland v. Hare & Chase, Inc.
Burroughs A. Strickland, as Trustee in Bankruptcy of the Estate of Avery D. Case v. Hare & Chase, Incorporated
Opinion of the Court
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Per Curiam.
The appellant is trustee in bankruptcy of Avery D. Case. In July, 1924, Case bought an automobile from respondent’s assignor for $1,226, under a conditional sale contract. The vendee made default in payment after making total payments of $726.50. Respondent retook the automobile without serving a preliminary notice of intention to do so.
Sections 76 to 80-j of the Personal Property Law (as added by Laws of 1922, chap. 642), known as the Uniform Conditional Sales Act, regulate the procedure in such transactions. Under section 78 the seller “ shall retain the goods for ten days after retaking.” Section 79 says: “ if the buyer does not redeem the goods within ten days after the seller has retaken possession,” the seller shall sell them “at public auction,” etc., and that the seller shall-give the buyer “ not less than ten days’ written notice of the sale.”
A notice of holding for redemption was mailed December 22, 1924. Notice of sale on-January thud was mailed December twenty- *197 fourth. The sale was held in respondent’s office in Rochester while the automobile Was at Brockport, several miles away. The appellant’s action is for damages under section 80-e of the Personal Property Law.
Two questions confront us: (1) Was the vendee entitled to ten days’ notice of sale after ten days’ holding for redemption? (2) Was there non-compliance with the provision of the Personal Property Law requiring the sale to be “ at public auction?”
As to the above question No. 1, appellant’s, contention cannot be sustained. (Freeman v. Engel, 185 App. Div. 218 .)
In Shimer v. Mosher ( 39 Hun, 153 ) it is held that under the common law — which also applies to statutory sales when no specific directions are given in the statute — personal property sold at public auction for the purpose of depriving the owner of his title through a tax sale must be physically at . the place of sale. To the same effect is Sherman v. Slayback ( 58 Hun, 255 ). The same reasoning applies to the instant case.
The judgment and order appealed from should be reversed on the law- and a new trial ordered, with costs to appellant to abide the event.
Present — Hubbs, P. J., Clark, Davis, Crouch and Taylor, JJ. All concur.
Judgment and order reversed on the law and new trial granted, with costs to appellant to abide the event.
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- Carter v. Brockway Motor Co.
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