Bloomingdale v. Braun , 141 N.Y.S. 590 ( 1913 )

Guy, J.

This is an action to foreclose a lien on a chattel. On February 25, 1908, the defendant purchased a piano under a contract of conditional sale for two hundred and sixty dollars on .payment of five dollars in cash and one dollar each week thereafter. All payments must be made at cashier’s office of Bloomingdale Brothers or at sender’s risk by registered mail to Bloomingdale Brothers. Default is alleged to have occurred on June 21,1912, leaving a balance of seventy-six dollars due. A demand for the balance of the account was made on October 11,1912, part payment was promised by the defendant, but she failed to keep her promise.

Defendant testified that she told plaintiffs’ representative that she could not pay weekly, but would pay as much as possible whenever she had the money; that he said all right, and that she paid this way until the final default; that at one time she skipped payment for eighteen weeks, at a time, and then would send five' dollars, ten dollars or fifteen dollars at a time; that she told him she would pay whenever she had the money; that she was very often in arrears.

In rebuttal plaintiffs ’ representative admitted being willing to take payments in bulk or monthly, as long as the account was kept up.

At the time of the default on which the foreclosure was brought, respondent was forty-three weeks in arrears.

In November, 1912, plaintiffs received a ten dollar money order from defendant, which they kept, but did not collect.

The right of a conditional vendor or mortgagee of chattels to foreclose upon the mortgagor’s or vendee’s default is not waived by his having accepted payments that were waivers of prior defaults. Kraus v. Black, 56 Misc. Rep. 641, 642.

As the contract of conditional sale required all payments to be made at the cashier’s office of Bloomingdale Brothers or by registered mail, no demand was necessary. McMullen v. Rafferty, 89 N. Y. 456; 9 Am. & Eng. Ency. of Law (2d ed.) 202, 203.

If there was any promise to extend the payment of the installments due, upon payment of part of what the debtor was legally bound, to pay, it was without consideration and unenforcible. Olmstead v. Latimer, 158 N. Y. 313, 319-321; Repelow v. Walsh, 98 App. Div. 320, 321.

The action was brought to recover the balance of the purchase price of the piano and foreclose plaintiffs’ lien therefor, and not to enforce any forfeiture. At any time up to the sale defendant may redeem. Tweedie v. Clark, 114 App. Div. 296, 300.

The cases arising where tenders of the amount due were refused or payment of the amount due was made through a sale by the vendor and actions for conversion brought by the vendee are not in point. As against enforcement of a forfeiture a receipt of part payment by a vendor may be a waiver of any forfeiture occurring up to that time, at least until some further payment was due or a demand therefor was made and refused, especially if a demand of payment was required before the forfeiture could be enforced. Hutchings v. Munger, 41 N. Y. 155, 158; O’Rourke v. Hadcock, 114 id. 541, 550; Cunningham v. Hedge, 12 App. Div. 212, 215; French v. Roe, 77 Hun, 380, 384-386.

The receipt, holding for a time, and then the tender back on the trial of a money order, is not the receipt of a part payment, but a mere tender of part payment, which plaintiffs had the right to refuse or to tender back on the trial. Defendant could have demanded it back if it was hot collected within a reasonable time.

Moreover all payments were required to be made at the vendors’ cashier’s office, or by registered mail.

Gerard and Page, JJ., concur.

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