Herbert v. Humphreys ( 1910 )

Bijur, J.

Defendant, in February, 1903, being in arrears for rent of plaintiff’s piano, purchased it for one hundred dollars payable at the rate of six dollars per month. She made occasional payments on account of this purchase, aggregating twenty-three dollars up to. December, 1903.

All the circumstances surrounding the salé indicate that it was intended to be merely conditional. Costello v. Herbst, 16 Misc. Rep. 687, affd., 18 id. 176; Smith v. Lynes, 5 N. Y. 41.

Section 139 of the Municipal Court Act does not forbid the entertainment of an action in replevin on this contract; because the inhibition is confined to written contracts of conditional sale, and the contract in the case at bar was oral, although a memorandum thereof was signed by the plaintiff.

Seabury and Dehman, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.