I think there should be judgment for the plaintiff. The plaintiff’s seller’s lien was lost when the oats were delivered to *98the railroad company (Rummell v. Blanchard, 167 App. Div. 654), but its right to stop continued so long as the goods were in transit. Although by accepting the draft Wiffler may have waived the right to examine the goods (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 128, subd. 3, added by Laws of 1911, chap. 571), plaintiff’s right to stop them was not affected by Wiffler’s obtaining possession, for he subsequently rejected them; nor was it affected by defendant’s refusal to receive back the goods. (Pers. Prop. Law, supra, § 139, added by Laws of 1911, chap. 571.) So far as the conduct of Wiffler and plaintiff is concerned, I regard nothing as of legal importance that happened prior to the commencement by plaintiff of the suit on the draft, because if whatever Wiffler did prior to that time gave rise to questionable legal rights in him, these were all waived when plaintiff sued on the draft. The right to stop continued until Wiffler became insolvent, and so long as the goods or their proceeds remained in the hands of the carrier and had not been effectually disposed of by Wiffler. (Stevens v. Wheeler, 27 Barb. 658; Pers. Prop. Law, supra, §§ 138, 143, added by Laws of 1911, chap. 571.) The sale of the goods oy the railroad company in foreclosure of their lien did not divest plaintiff’s right so far as the net proceeds were concerned. (Williston Sales, § 536; Clark v. Lynch, 4 Daly, 83; O’Brien v. Norris, Caldwell & Co., 16 Md. 122; Hause & Son v. Judson, 34 Ky. 7.) Nor was the act of suing upon the draft inconsistent with the right to stop. The old doctrine that the right of stoppage in transitu rests upon the theory of rescission and not upon lien has long been abandoned (Babcock v. Bonnell, 80 N. Y. 244; Sheppard v. Newhall, 54 Fed. Pep. 306; Rucker v. Donovan, 13 Kan. 251; Diem v. Koblitz, 49 Ohio St. 41), and the right of the seller to sue for the price of the goods without waiving his lien has been incorporated into the Uniform Sales Act (Pers. Prop. Law, supra, § 137, subd. 2, added by Laws of 1911, chap. 571). Nor was there ever any such delivery of the oats to Wiffler as defeated the seller’s right of stoppage. Prior to the adoption of the Uniform Sales Act it had uniformly been held that the delivery by the carrier necessary to defeat the right to stop was an actual delivery to the purchaser, or his agent, or transferee (Harris v. Pratt, 17 N. Y. *99249, 264); that the right continued so long as the actual possession of the carrier, qua carrier, continued (Id.; Holbrook v. Vose, 6 Bosw. 76, 105), and that mere constructive delivery to the purchaser was ineffectual. If the right to stop might be defeated by constructive delivery to the purchaser, manifestly it would be defeated by delivery to the carrier and thus the right to stop would never exist. It was on the ground of this distinction between actual and constructive delivery that we recently held that a seller’s lien for the purchase price was lost by the delivery by the seller to the purchaser of a negotiable warehouse receipt for the goods (Rummell v. Blanchard, supra), in which case we drew an analogy between negotiable warehouse receipts and negotiable bills of lading, the bona fide transfer of which, for value, was, as shown by the authorities we cited, held to transfer both title and possession. The Uniform Sales Act as adopted in this State (Pers. Prop. Law, supra, § 139, added by Laws of 1911, chap. 571) plainly states “when goods are in transit ” and when they are not. They are in transit:
“ (a) From the time when they are delivered to a carrier * * until the buyer, or his agent in that behalf, takes delivery of them from such carrier * * *;
“ (b) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, even if the seller has refused to receive them back.”
Goods are no longer in transit:
“(a) If the buyer, or his agent in that behalf, obtains delivery of the goods before their arrival at the appointed destination;
“ (b) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent * * *”
Undoubtedly by the acts of the plaintiff alone and without regard for anything that Wiffler did, title to the oats passed to Wiffler; but, as I have shown, the right of stoppage in transitu is based on the theory of lien, hence that title has passed to the purchaser. The material question in this case is not as to where the title was, but where was the actual posses*100sion of the oats or their proceeds at the time plaintiff served its notice to stop.
If the foregoing views are correct, the plaintiff is entitled to judgment for $287.85, and also, according to the terms of the submission, its disbursements incurred herein.
Laughlin, J., concurred.
Judgment ordered as stated in opinion. Order to be settled on notice.