Complaint

partially in money and partially by certain goods, wares and merchandise which were delivered to the defendant and received and accepted by the defendant as of the value of four hundred dollars ($400).

EIGHTH

That thereafter and on or about February 1st, 1910, said defendant and its agents and attorneys did, at Binghamton, N. Y., retake the said soda fountain, apparatus and appurtenances, under and by virtue of the aforesaid written conditional contract; that after retaking said soda fountain, apparatus and appurtenances as aforesaid, said defendant did not retain the same for a period of thirty days, but did during said thirty days let, lease and rent the said soda fountain, apparatus and appurtenances to one Frederick J. Baumann for a period of one month; that after the retaking of the said soda fountain, apparatus and appurtenances as aforesaid, and after the expiration of the thirty days following such retaking, said defendant did not, within the next thirty days, sell said soda fountain, apparatus and appurtenances at public auction.

NINTH

That by reason of the foregoing facts, and under and by virtue of, and by reason of, Chapter 418 of the Laws of 1897 of the State of New York, together with the acts amendatory thereof and supplementary thereto, and under and by virtue of and by reason of the provisions of §§ 60, 62, 65, 66 and 67 of the Personal Property Law of the State of New York, being a portion of Chapter 41 of the Consolidated Laws of the State of New York, the defendant became indebted, on or about April 1st, 1910, to this plaintiff in the sum of nine hundred five dollars ($905), being the amount paid by said firm of Pappas & Karahall aforesaid, to apply upon the purchase price of the said soda fountain, apparatus and appurtenances, under the contract for the conditional sale thereof.

Order

TENTH

That prior to the commencement of this action an order
was duly made by Benjamin Baker, Esq., Referee in
Bankruptcy, as aforesaid, authorizing and directing this
plaintiff to institute and maintain this action.

WHEREFORE the plaintiff demands judgment against
the defendant in the sum of nine hundred five dollars
($905) with interest thereon from April 1st, 1910, be-
sides the costs of this action.

H. J. HENNESSEY,
Attorney for Plaintiff,

10 and 11 McNamara Block,

[Verification.]

Binghamton, N. Y.

Form No. 55

Order; Conditional Sale; Action by Trustee in Bankruptcy under
§ 65 of the Personal Property Law for Failure of the Vendee to
Sell the Property Within the Time Specified in the Statute after
Retaking the Same.1

Supreme Court, Appellate Division, Third Department.
George J. H. Crowe, as Trustee of

the Estates of Pappas & Kara-
hall, a co-partnership, and
Nicholas Pappas and Peter
Karahall, individuals, bank-
rupts,

Appellant,

against

The Liquid Carbonic Company,

Respondent.

The appeal in the above-entitled action having been
heard at this term,

1 From Crowe v. The Liquid Carbonic Co., 208 N. Y. 396; aff'g 154
App. Div. 373; 139 Supp. 587. See ante, page 596. For Complaint in

Order

Now, on motion of H. J. Hennessey, attorney for
appellant, after hearing T. B. & L. M. Merchant, attorneys
for respondent, it is

ORDERED: (HOUGHTON, J., and LYON, J., dissenting),
FIRST: That the judgment entered in this action in the
office of the Clerk of the County of Broome on the 12th
day of April, 1912, be and the same is wholly reversed,
upon the law and facts, with costs of this appeal to the
appellant.

SECOND: That the fourteenth and fifteenth findings
of fact contained in the decision of the Trial Court herein
are hereby disapproved of, and reversed, upon the ground
that there is no evidence tending to sustain such findings.

THIRD: Final judgment is hereby directed to be entered
for the plaintiff against the defendant for the sum of nine
hundred and five dollars ($905), with interest thereon
from April 12, 1912, with costs to plaintiff in the court
below.

JOSEPH H. HOLLANDS,

[Seal.]

Clerk.

this case see ante, page 603. For Judgment of Reversal, see post,
page 609.

Judgment of Reversal

Form No. 56

Judgment of Reversal; Conditional Sale; Action by Trustee in
Bankruptcy under § 65 of the Personal Property Law for Failure
of the Vendee to Sell the Property Within the Time Specified
in the Statute after Retaking the same.1

Supreme Court, Broome County.

George J. H. Crowe, as Trustee
of the Estate of Pappas &
Karahall, a co-partnership,
and Nicholas Pappas and Peter
Karahall, individuals, bank-
rupts,

against

The Liquid Carbonic Company.

The plaintiff having appealed to the Appellate Division
of the Supreme Court in and for the Third Judicial De-
partment of the State of New York, from the judgment
entered in this action in the office of the clerk of the county
of Broome on the 12th day of April, 1912, in favor of the
defendant and against the plaintiff, dismissing the com-
plaint upon the merits and for costs $60.37, and said
appeal having been duly heard and an order of said Ap-
pellate Division having been made and entered reversing
said judgment, upon the law and facts, as well as the
fourteenth and fifteenth findings of fact contained in the
decision of the Trial Court herein, and directing final
judgment to be entered for the plaintiff for $905.00, with
interest thereon from April 12, 1912, with costs of said
appeal and of the Trial Term, and a certified copy of said

1 From Crowe v. The Liquid Carbonic Co., 208 N. Y. 396; aff'g 154
App. Div. 373; 139 Supp. 587. See ante, page 596. For Complaint
from this case see ante, page 603. For Order of Reversal, see ante,
page 607.

Judgment of Reversal

order attached to the original papers upon which said
appeal was heard having been duly transmitted to the
Clerk of Broome County and filed and entered in his
office on January 16, 1913, and the plaintiff's costs of said
appeal and of the Trial Term having been duly taxed and
adjusted at the sum of $235.06.

Now, on motion of H. J. Hennessey, attorney for the
plaintiff and appellant, it is hereby

ADJUDGED, that the judgment entered in this action
in the office of the Clerk of Broome County on April 12,
1912, be and the same is hereby wholly reversed upon the
law and facts, that the fourteenth and fifteenth findings
of fact contained in the decision of the Trial Court herein
are disapproved of and reversed upon the ground that
there is no evidence tending to sustain such findings, and
it is

FURTHER ADJUDGED, that the plaintiff recover final
judgment against the defendant herein for $945.33, to-
gether with the sum of $235.06, costs of said appeal and
of said Trial Term, amounting in all to $1,180.39, and
have execution therefor.

Judgment dated this 16th day of January, 1913.

M. B. TABER,

Dep. Clerk.