Citations
- 25 A.D.2d 405
Full opinion text
Rabin, J.
On June 19, 1961, 11 Union Pharmacy, Inc., hereinafter called the conditional buyer, purchased an'air conditioner from Billen Engineering and Sales Corp. The purchase was pursuant to a retail installment contract which was signed on behalf of the conditional buyer, by Baumritter, its president, and Schneider, its secretary. At the same time, the conditional buyer delivered its promissory note to the conditional vendor. Both Baumritter and Schneider signed the note individually as comakers. The installment contract, and note, were negotiated to plaintiff which, while paying value therefor, had full knowledge of the nature of the transaction.
At a time when less than 50% of the amount of the purchase price had been paid, the conditional buyer defaulted in meeting the installment payments due for the months of March and April, 1962. The plaintiff repossessed the air conditioner on May 22, 1962 and sold it at public auction on June 1, 1962, after having, on May 22, given the conditional buyer, notice of sale.
Plaintiff brings this action against comaker Baumritter for the amount due on the promissory note, less the net proceeds of the sale. Upon cross motions for summary judgment, the Civil Court granted that of the plaintiff and denied defendant’s motion to dismiss the complaint. The Appellate Term reversed, agreeing with the Civil Court that the defendant was not released on the note, but, remanding the matter to the Civil Court “ for a trial solely for the purpose of assessing damages ”, having concluded that the amount realized from the sale was not necessarily binding as to the value of the security sold. Both sides appeal.
It is our opinion that the complaint should be dismissed and summary judgment granted in favor of the defendant. In view of this conclusion we need not consider the propriety of the Appellate Term’s remand to determine damages.
We are in agreement with the Appellate Term, that the resale was not made in accordance with the governing sections of the Personal Property Law, then in effect, and was, therefore, an improper resale. Since less than 50% of the purchase price had been paid at the time of retaking, the plaintiff was not obligated to resell the property taken, no demand for such resale having been made by the buyer. However, the vendor did resell. Therefore, in order to hold the buyer for a deficiency, the sale must have been in strict compliance with the applicable provisions of the Personal Property Law (Mott v. Moldenhauer, 261 App. Div. 724, 727). Section 78 provides that where a seller has not given notice of intention to retake (as is the situation here), “ he shall retain the goods for ten days after the retaking * * # during which period the buyer * * * may redeem ”. This section has been interpreted to mean that the sale cannot take place until the 11th day (Fisk Discount Corp. v. Brooklyn Taxicab Transp. Co., 270 App. Div. 491, 499-500), the object being to give the buyer 10 full days in which to redeem. The sale here did not comply with the requirement