I am unwilling to find as a fact in opposition to the finding of the trial court that the defendant actually repossessed itself of the soda water fountain sold to Pappas & Karahall under conditional contract of sale prior to the 1st day of June, 1910.
The purchasers became bankrupt. "A considerable part of their property was subject to a large chattel mortgage. The soda water fountain, however, was not included. The receiver in bankruptcy took possession of all the property of Pappas & . Karahall not covered by the chattel mortgage. Such receiver, therefore, took possession so far as the law would permit, of the interest of the bankrupts in the fountain which they were under contract to buy. A sale under the chattel mortgage was attempted and the bankruptcy court issued a restraining order and the sale was not actually had until February, 1911, *377more than seven months after June 1, 1910. Although it does not appear that there was any restraining order with respect to the soda water fountain, still there was controversy over the chattel mortgage, over the lease, and the fountain was practically in the custody of the bankruptcy court. Both the receiver and the trustee say that they took possession of the fountain and that they never voluntarily surrendered it, and it was never actually removed until June 1, 1910, and concededly after its removal the defendant complied with all the requirements of the Personal Property Law with respect to holding and sale at public auction.
The sole circumstance against all these facts from which it can be adduced that the defendant did take possession of the fountain prior to the first day of June is that the defendant leased the fountain from month to month to the chattel mortgagee, who had purchased the perishable stock of the bankrupts and was conducting the store which they formerly occupied.
The letters of instruction of the defendant to its attorneys and their acts I do not think conclusively show that there was any intention of actually taking possession of the fountain by virtue.of the right which the defendant had under its contract of conditional sale.' It is true the defendant’s attorneys- kept the money received for the rental; but if the defendant did not take possession of the fountain the money belongs to the bankrupts or their trustee, and the fact that the defendant or its attorneys have possession of it does not conclusively establish that the defendant repossessed itself of the fountain by virtue of its contract.
But even if it be assumed that the defendant did retake the fountain as- early as February, 1910, and, therefore, did not comply with the requirements of the Personal Property Law with respect to holding it thirty days and reselling within the succeeding thirty days, still I am of opinion that the purchasers had a right to waive the requirements of the statute and that their agreement so to do is not against public policy and, therefore, ineffectual.
The contract of purchase contained a clear and explicit waiver of the requirements of the statute, and reads as follows: “ And we [purchasers] hereby agree that it shall not be neces*378sary for you. [defendant seller] to retain said property for a period of thirty days after retaking, or to. sell the same for our benefit; but upon such retaking our right to comply with the terms of this contract and thereupon to receive said property is expressly waived.” If the requirements of the statute with respect to. the retaking of property sold by conditional sale and the retaining of it for thirty days and the selling of it for the heneft of the buyer within the succeeding thirty days can be waived at all, the language quoted would clearly seem to constitute such a waiver.
The object of the statute in requiring the retaining of the property for thirty days after retaking is to give the buyer an opportunity to redeem tinder his contract and complete his purchase, and the requiring a sale at public auction within the next succeeding thirty days is to ascertain if a surplus may not be obtained over the amount due and expenses incurred which can he repaid to the buyer.
Of course a buyer of personal property under a conditional contract of purchase can agree to waive and forego all such privileges, unless it is against public policy to permit him so to do. A man with full understanding may deliberately contract to waive and may waive rights which the common law or the statute law or even the Constitution, itself accords to him unless for some reason it is against the Common good to allow him to do so. The statute was enacted primarily to protect persons of small means who were compelled to pinchase household goods and necessities on the installment plan, and to prevent the seller from retaking the property after a large proportion of the installments had been paid, without any accounting therefor, and simply because the contract had been broken.- This practice tended to impoverish citizens and to make paupers and public dependents of industrious and striving householders and families. • It has long been the law that one having a family to provide for was entitled to certain exemptions against execution. The object of such exemptions was to prevent pauperism and destitution, and it was, therefore, held by the courts that it was against public policy for a householder prospectively to contract to waive such exemption. (Kneettle v. Newcomb, 22 N. Y. 249.) The provisions of the Personal Property Law with respect *379to conditional sales had in view the same salutary purpose as the Exemption Law, and with respect to all exempt property, and possibly as to all useful and necessary household goods, I am willing to concede that a buyer should not be permitted by contract to waive the provisions of the statute. I can see no reason, however, for extending the prohibition to ordinary articles of commerce and of trade. Mo considerations of public policy are involved in contracts made by a merchant with respect to his business affairs. . A druggist or a candy maker can install a soda water fountain in connection with his business if he chooses, or he can run his establishment without it. If he sees fit, without any advantage being taken of him, to make a bargain to purchase a soda water fountain on the installment plan, I fail to see any consideration of public policy which should prevent him from agreeing that if he fails to pay all the installments the seller may retake the property and claim it as his own without selling it at public auction and accounting to him for the proceeds. Because the statute may require the intervention of public policy as to the purchase of some articles it does not necessarily follow that public policy applies to all articles purchased by conditional contract of sale.
Roach v. Curtis (191 N. Y. 387) is not a conclusive authority requiring a holding that the contract under consideration was against public policy. The goods purchased in that case were articles of household furniture and there was a waiver only of the sale at public auction. While it is strongly intimated that an agreement to waive the requirements of the statute in the conditional purchase of household furniture would be against public policy, and, therefore, void, it is not so expressly held, the decision turning upon the point that the waiver was not broad enough to include all provisions of the statute but related only to the manner of sale on default.
The same may be said of the decision in Hurley v. Allman Gas Engine & Machine Co. (144 App. Div. 300), which ultimately turned upon the proposition that the agreement of waiver was not broad enough to include a, waiver of sale.
In the present case the requirements of retaining the property for a period of thirty days after retaking and of selling for the benefit of the buyer .are both expressly waived, as well *380as the right to retain all instalhnents paid for the use of the property while the vendees had possession. •
It seems to me that there is no ground for saying that the agreement which the parties entered into for the purchase of the soda water fountain respecting the waiver of the provisions of the statute was against public policy, and I, therefore, vote for an affirmance of the judgment.
Judgment reversed upon the law and facts. The 14th and 15th findings of fact are disapproved of as without evidence. Final judgment directed for the plaintiff for the payments made as per the 8th and 9th findings, with interest from April 12, 1912, with costs to plaintiff in the court below and on this appeal.