Boriskin v. Toll Realty & Construction Co.

225 A.D. 695

Opinion

Order granting plaintiff’s motion for judgment on the pleadings as against defendant Best Plumbing Corporation reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The complaint is insufficient as against defendant Best Plumbing Corporation. If plaintiff desires to litigate the validity of the claimed hen of that defendant he should allege facts showing that he is a bona fide purchaser for value without notice of the conditional seller’s title to the fixtures in question. The complaint does not contain any allegation that these fixtures were affixed to the freehold prior to September 23, 1927, or that the plaintiff had no actual knowledge of the conditional seller’s title. Proof of such facts on the part of plaintiff is essential to an .adjudication in his favor that the defendant Best Plumbing Corporation’s conditional sales agreement is void, where it does not appear in the record that the conditional sales agreement was made prior to the date of its recording set out in the answer, December 6, 1927. If plaintiff does not desire to litigate the lien in this action then defendant Best Plumbing Corporation should be eliminated as a party. (Condit v. Goodwin, 44 Misc. 312; affd., 107 App. Div. 616.) Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.