#### Lena Crump, Appellant, *v.*Otto Wissner, Respondent.

Second Department,

June 26, 1914.

Sale — conditional sale—foreclosure of lien under Municipal Court Act — sale of chattel on execution — provisions of Personal Property Law not applicable.

Where a conditional vendor of a chattel has foreclosed his lien thereon by a proceeding under section 189 of the Municipal Court Act, and the chattel, having been seized by the city marshal, has been sold on execution, the conditional vendee cannot maintain an action to recover the value of the property upon the theory that the provisions of the Personal Property Law, relating to the retaking of property by a vendor, have not been complied with.

The taking of the property by the city marshal in the suit of foreclosure was not a retaking by the vendor, for the property was in the custody of the court. The provisions of the Personal Property Law apply only where the property is retaken by the vendor himself under a contract entitling him to do so without action.

Appeal by the plaintiff, Lena Crump, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the *481st day of Hay, 1914, denying her motion for judgment on the pleadings.

*Joseph F. Conran,*for the appellant.

*Benjamin C. Ribman,*for the respondent.

Per Curiam:

The present defendant, Wissner, was a conditional vendor, who, after default, took proceedings to foreclose his lien under section 139 of the Municipal Court Act (Laws of 1902, chap. 580, as amd. by Laws of 1910, chap. 542). Under a warrant of seizure in that proceeding, the chattel was taken and held by a city marshal. A judgment was recovered after personal service on the vendee, Lena Crump, in favor of the vendor, and the chattel was sold by execution sale. Nevertheless the vendee founds this suit in the Supreme Court, upon sections 65, 66 and 67 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45), providing for a period of thirty days from the time of retaking for redemption, and within thirty days thereafter an auction sale, where the property is “ retaken by the vendor, or his successor in interest.” Such a marshal’s seizure in a foreclosure proceeding is not a retaking by the vendor, as the chattel is and remains in the custody of the law. This remedy under the Municipal Court Act does not conflict with the terms of the Personal Property Law which applies to the vendor’s retaking without legal process. *(Sigal*v. *Hatch Co.,*61 Misc. Rep. 332; *Quattrone*v. *Simon,*85 id. 357.)

The saving clauses in the Municipal Court Act, section 142, which declare that this title shall not affect existing rights or remedies to foreclose or satisfy a lien upon á chattel without action, and “ does not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law,” have been well considered by Justice Bogenschutz in an opinion in *Boyd*v. *Wissner,*in the Municipal Court of the city of New York in February, 1914, from which we quote: “Under the first part of this section it is manifest that the framers had in mind all special provisions of law concerning the method of asserting and enforcing liens on personal prop*49erty without action therefor, such as Artisan’ Liens, Vendors’ Liens on sales of personal piV ■ -ty, ■ ' '■ "isomen’s Liens, Innkeepers, etc., as well as such others where there is a retaking of possession of property by the vendor, the title of which is vested conditionally in the vendee, and it be retaken with the object of regaining possession thereof by action or otherwise with a view to private disposition thereof.

*“*Under the latter part of this section it will be observed that it was intended not to interfere with or change any existing method, specially prescribed by law, for the foreclosure of liens by action such as result in a final determination of the status of the parties by a judgment — that is, in effect an equitable judgment which makes a disposition of the property under the law’s process, as distinguishable from a form of action and judgment therein which has as its only objective the possession of the property, with a personal right of private disposition thereof, as was the situation in the cases of *Roach*v. Curtis, 191 N. Y. 387; *Crowe*v. *Liquid Carb. Co.,*208 N. Y. 396.

*“A*fair and reasonable construction of sections 65, 66 and 67 of the Personal Property Law will indicate that it was not intended to include a retaking in the sense of a seizure by levy under an execution issued upon a judgment *in rem.*If it had been so intended, it could have been stated in some clear language. A reference to sections 66 and 67 will clearly indicate that all that was contemplated was a retaking in an attempt to enforce a hen in a manner and under circumstances which would avoid or prevent a public sale with notice and opportunity for redemption. In other words, to afford the conditional vendee equitable protection from harsh contracts, affording reasonable notice of time and place of a public sale, and preventing the many subterfuges which invest sales of such chattels, at a private sale. ”

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Bubb, Oabb, Rich and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.