On appeal from the Supreme Court.
For the appellant, Jacob L. Newman, Lionel P. Kristeller and Saul J. Zucker.
For the respondent, Maurice Bernstein and David Bernstein (of the New York bar).
The opinion of the court was delivered by
DONGES, J. This appeal brings up a judgment of the Supreme Court entered in favor of respondent and against
appellant, in an action in replevin, awarding to respondent possession of an automatic sprinkler system, together with its accessories, which had been installed on the premises now owned by the appellant, while in the ownership of another corporation, and which had been installed under a contract of conditional sale with appellant's predecessor, and also awarding damages.
Respondent waived the taking of the goods as permitted by the statute.
The complaint was in two counts; the first count was in replevin, and the second count was in trover. The defendant urges that the plaintiff should have been required to elect on which count it proposed to proceed.
The first count alleged that the sprinkler system was installed under a conditional sales agreement with the Equitable Properties Corporation in 1927, for a consideration of $3,600, of which $1,400 remains unpaid; that the agreement was duly recorded and provided that the property should remain in the seller until the purchase price was fully paid and should at all times be considered as personal property; that in 1929 the premises were conveyed to the defendant (they were sold by the sheriff in foreclosure proceedings) and that defendant acquired title with full notice of the conditional sales agreement and of the amount due thereon.
The second count repeats the allegations in the first count, sets up the demand for possession, and alleges conversion of the goods.
The answer is formal, except that the first separate defense to each count is that the defendant is a bona fide purchaser for value "without notice of the alleged claim of the plaintiff, and the goods sued for having been affixed to the said realty so as to become a part thereof, the alleged reservation of title in the plaintiff is void," under Pamph. L. 1919, ch. 210.
The trial judge refused to nonsuit and to direct a verdict for the defendant. He then submitted the following question in ...