Lana v. International Harvester Co. of America

258 A.D. 851, 15 N.Y.S.2d 960, 1939 N.Y. App. Div. LEXIS 7229

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1939
• Status: Published

Opinion

Judgment of the Monroe County Court modified so as to provide that the complaint be dismissed and as so modified affirmed, with costs to the respondent. Memorandum: The judgment should be modified by inserting therein the provision that the complaint be dismissed and, as so modified, should be affirmed, with costs, upon the authority of Seeley v. Prentiss Tool and Supply Co. (158 App. Div. 853; affd., 216 N. Y. 687). Although more than fifty per cent of the purchase price had been paid, the new agreement, which was based upon a new consideration and which, by its terms, released the conditional seller from compliance with the provisions of section 79 of the Personal Property Law relating to a compulsory resale by the seller and which released the conditional buyer from any liability for the unpaid balance of the purchase price and for the cost of repairs which were made necessary by damage to the truck while in the buyer’s possession and before the retaking by the seller, is not void and unenforcible as contrary to pubhc policy. (See Manhattan Taxi Service Corp. v. Mogul Finance Corp., 140 Misc. 386, 388; affd., 234 App. Div. 746.) Ah concur. (The judgment reverses a judgment of the Rochester City Court, Civil Branch, in favor of plaintiff in an action to recover money paid under a conditional contract of sale for failure of vendor to comply with the statute.) Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.