On appeal from the District Court of the city of East Orange.
For the defendant-appellant, Harold Simandl.
For the plaintiff-appellee, Chivian & Chivian (Herman Chivian, of counsel).
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
TRENCHARD, J. This is defendant's appeal from plaintiff's judgment in a replevin case, directed by the trial judge.
The following uncontroverted facts (among others) appear in the record:
On March 25th, 1935, the Hetzer Chevrolet Company, Incorporated, of 164 Fourth avenue, Brooklyn, New York,
sold the automobile in question to one Arthur Wallace under a conditional bill of sale, which contract was assigned to the plaintiff-appellee, General Motors Acceptance Corporation (hereinafter referred to as the plaintiff) and payment made therefor. On April 2d, 1935, a copy of the contract was filed in the office of the register of deeds for the county of Kings, borough of Brooklyn. On April 4th, 1935, two days thereafter, the conditional vendee, Arthur Wallace, contrary to the terms of the conditional sales contract, and without notice to, or permission of the plaintiff, the legal owner, executed an assignment to Thomas Garland in the same county, namely Kings. This assignment was offered in evidence by the defendant-appellant, Henry J. Schwartz (herein referred to as the defendant), and was admitted in evidence. It states "The Seller also certifies that he has owned the above described vehicle since March 25th, 1935, until the date of this Bill of Sale" namely April 4th, 1935. Thereafter, on April 5th, 1935, the Pace Auto Sales, a corporation, received the title papers for this car from Garland, a used car salesman, who admitted that he had been convicted of petty larceny upon his own confession and plea, and that he paid Arthur Wallace for the car before he got the bill of sale in this transaction, and did likewise in ten or fifteen similar transactions. Subsequently, on April 8th, 1935, the defendant purchased this car from the Pace Auto Sales. Thereafter plaintiff found the car in defendant's possession and brought this replevin action.
We find no fault with the direction of the verdict for the plaintiff.
Plaintiff was the lawful holder of the conditional sale contract by virtue of the assignment of the contract to it, and had a special property right therein sufficient to bring a replevin action. By that assignment the plaintiff became the legal successor in interest of the assignor and was entitled to every right the assignor would have had if the assignment had not been made. "One of these rights was the right to retake the motor vehicle in the ...