(dissenting). The contract of conditional sale contemplated that the vendee might resell the property. The sheriff, holding an execution against the vendee, sold thereunder only the vendee’s right, title and interest therein. The plaintiff vendor has never attempted to take possession of the property and has never made demand therefor. It is true that written notice was served upon the sheriff in her behalf forbidding the sale, but the sheriff certainly had authority to sell whatever interest the vendee might have in the property. (Savall v. Wauful, 21 N. Y. Civ. Proc. 18; affd., 63 Hun, 627.) The rule is stated in Frank v. Batten (49 *213Hun, 91) that “ the vendee is entitled to the possession until the day of payment has passed and until the vendor repossesses himself of the property. The creditors of the vendee may levy upon the property and pay the vendor the purchase price in behalf of the vendee, and thus secure to themselves every interest, legal or equitable, which the vendee has in the property.” Even if the vendee had not title to the property, he certainly had an interest therein. (See Pers. Prop. Law, §§ 77-80-j; Davis v. Bliss, 187 N. Y. 77.)
It is true that the title to the property remained in the plaintiff and that upon making demand therefor she would have been entitled to the possession. It seems to me that such demand was a condition precedent to the bringing of the present action. (Tompkins v. Fonda Glove Dining Co., 188 N. Y. 261; Gillet v. Roberts, 57 id. 28.)
These reasons induce me to favor an affirmance of the judgment of the County Court.
Judgment of Broome County Court reversed on the law and facts, with costs in this court and in the County Court, and judgment of Binghamton City Court reinstated.