(Justice Ct. Act, ยง 272; Quackenbush v. Johnston, 249 A.D. 452.) Although the County Court of Suffolk county has previously taken jurisdiction of proceedings of this nature ( Edwards v. Walker, 162 Misc. 96), I am of the opinion that it is unnecessary upon this motion to determine whether that court has jurisdiction to entertain these proceedings. Section 696 of the Civil Practice Act, as amended, provides for an entirely new method of determining the claim to property levied upon by the sheriff.
In so holding, we recognize a difference of opinion as to whether notice to a sheriff is imputed to an attaching or levying creditor. 47 Am.Jur., Sales, ยง 919; Annot., 72 A.L.R. 168; Annot., 159 A.L.R. 676. Riggs relies primarily on Lyle Culvert Road Equipment Co. v. J. F. Anderson Lumber Co., 46 S.D. 366, 193 N.W. 58, and Edwards v. Walker, 162 Misc. 96, 293 N.Y.S. 1007, both analyzed and criticized in N.B.I. Corp. v. Keller, 175 Misc. 231, 23 N.Y.S.2d 59, aff'd 261 App. Div. 881, 25 N.Y.S.2d 1017, which relies upon Universal Credit Co. v. Knights, 145 Misc. 876, 261 N.Y.S. 252. We feel the better reasoning is set out in 1 Jones, Chattel Mortgages and Conditional Sales, ยง 311 (Bowers Ed. 1933):
In at least two cases, County Courts have taken jurisdiction. (N. B. I. Corp. v. Keller, 175 Misc. 231; Edwards v. Walker, 162 Misc. 96.) In neither case was the jurisdictional question raised.
In at least two cases, County Courts have taken jurisdiction. ( N.B.I. Corp. v. Keller, 175 Misc. 231; Edwards v. Walker, 162 Misc. 96.) In neither case was the jurisdictional question raised.
I recognize that a heavy burden is placed on one who tries to ascertain whether a conditional sales contract exists in circumstances as are here presented. It is a problem, however, that must be resolved by the Legislature and cannot be by the court. Finally, since I find that Keeler was in default under the retail installment contract at the time of the levy, the plaintiff's right to possession is superior to that of the defendants (see Edwards v. Walker, 162 Misc. 96; Cohocton Val. Garage v. Kellogg, 136 Misc. 283; Bankers Trust Co. v. Island Discount Corp., 6 Misc.2d 948; Matter of Dineen Sales Service Corp. v. Hall, 13 Misc.2d 560). The defendant, St. Nance Equity Corp., the buyer at the execution sale, stands in the shoes of the codefendant (see Eager, Chattel Mortgages and Conditional Sales, ยง 346, p. 456, cited by defendants).
But while it appears to this court that the sheriff had no notice of "such provision" referred to in section 65 Pers. Prop. of the Personal Property Law, yet, even if the sheriff's deputy was given notice, it does not appear that such notice constitutes notice to the judgment creditor. The claimant bases its position as to that point on the case of Edwards v. Walker ( 162 Misc. 96) and which clearly supports its contention. That case, however, appears to have been based upon a decision of the Supreme Court of South Dakota ( Lyle Culvert Road Equipment Co. v. Anderson Lumber Co., 46 S.D. 366; 193 N.W. 58), which, in turn, cites among other cases, Gandy v. Collins ( 214 N.Y. 293) and Parshall v. Eggert (54 id. 18) as being authorities for holding that an officer making a levy under an execution is the agent of the execution creditor.