" United Machinery Co. v. Etzel, 89 Conn. 336, 342, 94 A. 356; Beach's Appeal, 58 Conn. 464, 20 A. 475. As to the law of New York, see Gray v. Booth, 64 N.Y. App. Div. 231, 71 N.Y.S. 1015; Norton v. Abbott, 113 N.Y.S. 669; Taylor v. Esselstyn, 62 Misc. 633, 115 N.Y.S. 1105; Mortenson Woodworking Co. v. Raabe, 171 N.Y.S. 128.

( Dustan v. McAndrew, 44 N.Y. 72; Ackerman v. Rubens, 167 id. 405.) While there may have been some conflict on the subject with respect to conditional sales (See National Cash Register Company v. Schmidt, 48 App. Div. 472, and Gray v. Booth, 64 id. 231), the weight of authority in this State supported the rule that even under the present form of contract the price might be recovered at common law irrespective of the passage of title to the goods. Therefore, unless section 144 Pers. Prop. of the Personal Property Law, or some statutory provision contained in the Uniform Conditional Sales Act indicates the legislative intention to prohibit an agreement such as the present, the parties had the right to stipulate that the price would be payable under such circumstances as they fixed.

Hunt on Tender, sec. 353; Garrard v. Zacharial, 1 Stew. (Ala.) 272; Comstock v. Lager, 78 Mo. App. 390, 394; Thompson v. Dickerson, 68 Mo. App. 535; Benjamin's Principles of Sales (2 Ed.), pp., 136, 137, and cases cited; Clark v. Weis, 87 Ill. 441; Smith v. Lewis, 26 Conn. 119; Lawrence v. Miller, 86 N.Y. 131; Eddy v. Davis, 116 N.Y. 247; Nelson v. Plimpton Fireproof Elevating Co., 55 N.Y. 480, 484; Berry v. Nall et al., 54 Ala. 446, 454. (3) The trial court was in error in supposing that plaintiff could not maintain an action for the purchase price unless the title had passed to the defendant. That theory has been exploded and it is now quite well settled that in an action for the purchase price the title is not involved. National Cash Register Co. v. Dehn, 139 Mich. 406; Ideal Cash Register Co. v. Zunino, 39 Misc. (N.Y.) 311; Gray v. Booth, 64 N.Y. App. Div. 231; National Cash Register Co. v. Hill, 136 N.C. 272, reported with case note in 68 L.R.A. 100; Marvin Safe Co. v. Emanuel, 21 Abbott's New Cases (N.Y.) 181; White v. Solomon, 164 Mass. 516; Forbes Piano Co. v. Wilson, 144 Ala. 586; Root v. Lord, 23 Vt. 568; Tufts v. Wynne Thompson, 45 Mo. App. 42; McJilton v. Smizer, 18 Mo. 111. As pointed out by Alton B. Parker, J., it is, at most, a "mere fiction of the law" resorted to for the purpose of measuring the damages. Moore v. Potter, 87 Hun, (94 N.Y. Supreme) 334, afterwards followed by the Appellate Court in Moore v. Potter, 155 N.Y. 481. Indeed, the title could not pass to the defendant until he paid the purchase price, since that is a condition precedent.

The plaintiff showed that the value of the safe was at all times at least equal to the agreed price. Under the common law of this state the plaintiff, we think, would have been entitled to a judgment for the price ( Ideal Cash Register Co. v. Zunino, 39 Misc. 311; Cambridge Society v. Elliot, 50 id. 159; Gray v. Booth, 64 A.D. 231), although there is authority to the contrary. National Cash Register Co. v. Schmidt, 48 A.D. 472.

A simple contract was all that was necessary between the parties; the defendants, for a good consideration, agreed to pay $6,000 in September and October, as much as though they had made a promissory note for each of these sums, and the action lies to recover these amounts without tendering a conveyance of the premises, for the contract clearly contemplated the payment of these sums before there was any obligation on the part of the plaintiffs to do anything more than had already been done. This was held in the case of Paine v. Brown ( 37 N.Y. 228). Indeed, it was there laid down as the law that where the contract by its terms provided that payments should be made previously to the execution of the deed, it was not necessary for the plaintiff to convey or to offer to convey before bringing suit even for the last installment, and the doctrine of this case was reasserted in Gray v. Booth ( 64 App. Div. 231, 236) and in Eddy v. Davis ( 116 N.Y. 247). The defendants urge that as the evidence in support of the allegation of the complaint that the plaintiffs entered into a contract with the defendants is furnished by the plaintiffs, the court erred in refusing to submit the question to the jury on the ground that the plaintiffs were interested witnesses.

National Cash Reg. Co. v. Schmidt, 48 A.D. 473, is cited as an authority in support of this proposition. But this court in Cash Register v. Zinnio, 39 Misc. Rep. 311, held, in a similar case, that an action might be brought for the contract price and the Appellate Division in the Third Department in Gray v. Booth, 64 A.D. 231, reached the same conclusion and refused to follow National Cash v. Schmidt, supra. The judgment should be affirmed, with costs.

That the defendant has not the title and possession of the cash registers is due to his own default entirely. If further citation of authority be deemed essential to support the conclusions above expressed, reference may be had to the quite recent decision in Gray v. Booth, 64 A.D. 231, which seems decisive on the point raised on this appeal. We fully approve the views therein expressed.

The Appellate Division of the Third Judicial Department of the State held that the plaintiff is entitled to recover the amount named in the contract, in the event of the vendee's refusal to accept the goods. Gray v. Booth, 64 A.D. 231. The Appellate Division of the Second Department, in the case of the National Cash Register Co. v. Schmidt, 48 A.D. 472, held that, under such a contract as that upon which this action is brought, the plaintiff was entitled only to nominal damages.