Manufacturers Hanover Trust Co. v. Nascarella

Appellate Division of the Supreme Court of New York

Manufacturers Hanover Trust Co. v. Nascarella

23 A.D.2d 727, 257 N.Y.S.2d 616, 1965 N.Y. App. Div. LEXIS 4544

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 1, 1965

StatusPublished

This text of 23 A.D.2d 727 (Manufacturers Hanover Trust Co. v. Nascarella) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Manufacturers Hanover Trust Co. v. Nascarella, 23 A.D.2d 727, 257 N.Y.S.2d 616, 1965 N.Y. App. Div. LEXIS 4544 (N.Y. Ct. App. 1965).

Pincite

Opinion

Judgment unanimously reversed on the law and on the facts, without costs, and a new trial ordered as a matter of discretion. The ease was submitted to Trial Term on an agreed statement of facts. Plaintiff, the assignee of a, note and a conditional sales contract for an automobile, repossessed the car after defendant bad defaulted in payments. Defendant made a tender of the installments in default plus the expenses of retaking. The tender was refused. The tender was made more than 16 days after the retaking. Trial Term found that the tender was proper. Had it been made within the statutory period of 10 days this finding would have been correct (Personal Property Law, § 78; Clark v. Tri-State Discount Go., 151 Mise. 679). If the tender was not made pursuant to the statute, plaintiff, having accelerated the payments due to the default, could refuse it. Trial Term found that the parties did not rely on the 10-day time limitation. The difficulty with this finding is that nothing in the agreed statement gives it support. The stipulated facts do not cover this factor at all and the question of what the parties relied on cannot be answered from any fact or inference from any fact in the agreed statement. In addition, we are also of the opinion that there is a question as to whether the defendant, having transferred his interest in the vehicle to a third party, was entitled to redeem, and that the stipulated facts are not dispositive of all the issues pertinent to such question. In the interest of justice we remand the ease for a new trial either by stipulating further facts or, if this is not done, by taking testimony. Concur — McNally, J. P., Stevens, Eager, Steuer and Witmer, JJ.

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Judgment unanimously reversed on the law and on the facts, without costs, and a new trial ordered as a matter of discretion. The ease was submitted to Trial Term on an agreed statement of facts. Plaintiff, the assignee of a, note and a conditional sales contract for an automobile, repossessed the car after defendant bad defaulted in payments. Defendant made a tender of the installments in default plus the expenses of retaking. The tender was refused. The tender was made more than 16 days after the retaking. Trial Term found that the tender was proper. Had it been made within the statutory period of 10 days this finding would have been correct (Personal Property Law, § 78; Clark v. Tri-State Discount Go., 151 Mise. 679). If the tender was not made pursuant to the statute, plaintiff, having accelerated the payments due to the default, could refuse it. Trial Term found that the parties did not rely on the 10-day time limitation. The difficulty with this finding is that nothing in the agreed statement gives it support. The stipulated facts do not cover this factor at all and the question of what the parties relied on cannot be answered from any fact or inference from any fact in the agreed statement. In addition, we are also of the opinion that there is a question as to whether the defendant, having transferred his interest in the vehicle to a third party, was entitled to redeem, and that the stipulated facts are not dispositive of all the issues pertinent to such question. In the interest of justice we remand the ease for a new trial either by stipulating further facts or, if this is not done, by taking testimony. Concur — McNally, J. P., Stevens, Eager, Steuer and Witmer, JJ.

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Bluebook (online)

23 A.D.2d 727, 257 N.Y.S.2d 616, 1965 N.Y. App. Div. LEXIS 4544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manufacturers-hanover-trust-co-v-nascarella-nyappdiv-1965.