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110 A.D. 770

Milicie v. Pearson

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

Decided January 26, 1906

Appellate Division of the Supreme Court of the State of New York · decided 1906-01-26

Appeal by the plaintiff, Baldassare Milicie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the'county of Kings on the 24th day of February, 1905, upon the dismissal of the complaint by direction of the court after, a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 3d day of March, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Decided 1906-01-26

Gaynor, J.:

¶1The judgment should be affirmed. The plaintiff’s assignor knew that Sielke & Co. had a contract with the defendant to ft up his store and became contractor to .them to .do. part of. that .contract, viz., put in the fixtures in question, which he did. The defendant" had no contract with or obligation to him whatever; he had to pay( and did pay his own contractors, Sielke & Co.. The plaintiff’s assignor knew of the defendant’s contract, with Sielke &. Co. before he made his with them, and agreed with them to furnish, the chattels to be delivered to the defendant under their contract.. He could not retain title under such circumstances. He knew that title was to pass to the defendant. • He furnished the chattels to Sielke & Co. to enable them to perform their contract and part with title to the said chattels to the defendant in order to get paid for them by him. " . .

¶2The researches of counsel have not discovered any case in point, but the case of Fitzgerald v. Fuller (19 Hun, 180) may bear .on the case, and the case of Kerby v. Clapp (15 App. Div. 37, 44) bears on the question.

¶3In the view taken of the case it is not necessary to decide whether the defendant had notice, actual or constructive, before he paid Sielke .& Co., of the clause in the contract of the plaintiff’s assignor with them that title should not pass to them until payment of the contract price. If he had it would' make no difference. . He knew that title was to pass from them to the defendant under their com tract at once, in order that they might fulfill their contract and be paid, therefor,, and delivered the chattels to.enable that to take place. For him to retain a lien on or ownership of the chattels would be antagonistic to this main purpose, they could not. exist, together.

¶4After the bulk of the work or all of it had been done, the .plaintiff’s assignor wrote to the defendant .requesting him to pay .Sielke & Co. so that he could collect of them. If he had any, ownership or lien this was a waiver of it.

¶5The judgment is affirmed.

¶6Present — Jenks, Hookee, Gaynoí, Rich and. .Mieleb, JJ:

¶7.Judgment unániihously.affirmed, with.costs.

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