Walker v. Mitchell ( 1881 )

Bocees, J.:

The evidence in this case tended to prove, and as it stands in the record did prove, that the sale of the oxen was conditional, that is, that the title should remain in the vendor until the purchase-price was fully paid. The case is, therefore, brought directly within the decision in Ballard v. Burgett (40 N. Y., 314), overruling Wait v. Green (36 N. Y., 556). The decision in the former case received 'direct approval in Austin v. Dye (46 N. Y., 500), and in Humeston v. Cherry (23 Hun, 141) the doctrine of that case was declared to be the settled law of this State. (See, also, Nash v. Weaver, 23 Hun, 516.) To the same effect is the decision in Cole v. Mann (62 N. Y., 1), also in Knowlson v. Sprong (10 W. D., 81). The cases cited also further held (notably the leading one of Ballard v. Burgett) that a bona fide purchaser from the vendee obtains • no better title than had the latter. The case of Comer v. Cunningham (77 N. Y., 391) lays down no new rule of law on this subject. Indeed, the doctrine of Ballard v. Burgett there receives entire sanction. (Page 399; see, also, 24 Alb. Law Jour., 363). On the authority of the decisions above referred to a new trial must be ■granted in this case.

Judgment reversed, new trial granted, costs to abide the event.

Boardman, J., concurred.