It stands conceded upon the record that when the plaintiff delivered the automobile to the defendant the conditional bill of sale under which it had been purchased had been assigned to the commercial credit corporation; and that, when the car was delivered to the defendant, the plaintiff was in default on two prior monthly payments under the conditional bill of sale.
It is further undisputed that the car was repossessed by the commercial credit corporation upon demand made upon this defendant and that thereafter, in settlement of an action brought for a deficiency arising after a sale, the plaintiff paid the commercial credit corporation the sum of $195.
Under these circumstances I am of opinion that no conversion was made out against the defendant. There was clearly no conversion in the cepit. As to the detinet, the defendant proved an absolute defense. Title to the automobile was never in the plaintiff. At the times in question title was in the commercial credit corporation. Because of plaintiff’s default in payments, the right of possession by recapture was likewise in such corporation.
The plaintiff proved no violation of the Uniform Conditional Sales Act. On the contrary, he showed that the taking even by the commercial credit corporation v/as proper, for he paid by way *102of settlement the claim for a deficiency. The cepit having been legal on the part of the defendant, it was not liable on the theory of a wrongful taking. It was not liable for a wrongful detinet, since it proved that it failed to deliver possession upon demand to the plaintiff through no fault of its own. Possession could not be given to the plaintiff because it had been rightfully given to a third party who had, as against the plaintiff, not only title, but the right to possession. By a refusal to surrender to the commercial credit corporation the defendant might well have subjected itself to an action in conversion by its assignee.
I, therefore, dissent and vote for reversal.
Finch, P. J., concurs.
Determination affirmed, with costs and disbursements.