Opinion
May 7, 1952.
Appeal from Supreme Court in Broome County.
The action is in replevin for the recovery of an automobile which plaintiff sold and delivered to one Marsh who sold it to the defendant. The facts and circumstances concerning plaintiff's sale to Marsh were such as to have constituted it a contract of conditional sale, and the latter as conditional vendee was thereby clothed with power to transfer its title to the defendant, a bona fide purchaser for value without notice, actual or constructive, or knowledge of the conditional sale. Judgment affirmed, with costs.
Foster, P.J., Heffernan, Brewster and Bergan, JJ., concur;
I dissent and vote for judgment in favor of the plaintiff. In my view no title passed to Marsh, and defendant, experienced in such matters, in accepting the automobile with no indicia of title whatever, save bare possession, may not be considered an innocent purchaser.