The plaintiff was obliged to prove that the title to which Mrs. Weinfeld voluntarily yielded was paramount to that acquired by him from the defendant and by Mrs. Weinfeld from him. Bordwell v. Collie, 45 N. Y. 494.
Plaintiff has put in evidence a contract between the Hnion Granite Company and Mrs. Kurzynsky showing title to the tubs in question in said company. It was conceded that said contract was executed in duplicate and that one duplicate was delivered to the purchaser. Said contract was dated February 28, 1903, and, under section 115 of the Lien Law, as it stood before its repeal, which went into effect on September 1, 1905, did not need to be filed as against subsequent purchasers, as the tubs covered by it are undoubtedly household goods under that section. The Laws of 1905, chapter 503, which repealed said section 115 of the Lien Law, saves from the effect, of the repeal “ any action or proceeding pending at the time this act takes effect.” We must assume that the Legislature intended to include in these words such a case as the present one; as it is evident that to take away from a vendor the protection of a statute on which he has relied would be unconstitutional, for it would not affect a remedy, but a right.
Even if the mode of the attachment of the tubs to the freehold had been such that they might be held to be fixtures in case the purchaser had become the unqualified owner of the freehold, they nevertheless continued to be personal property by virtue of the arrangement between the purchaser and the vendor. Kerby v. Clapp, 15 App. Div. 37.
*487This being the case, the Union Granite Company was protected against subsequent purchasers without filing the contract; the fact that it did file and refile the contract does not affect the protection the statute gave it through the execution of duplicate contracts and the delivery of one of the duplicates to Mrs. Kurzynsky.
The value of the tubs is conceded to have been $143, the amount found by the judge below; it is also conceded that Mrs. Weinfeld, the last owner, paid the claim and that plaintiff, Mrs. Weinfeld’s vendor, paid her for her claim against him arising out of this breach of warranty of title; it is also conceded that defendants were plaintiff’s vendors.
In my opinion the plaintiff has thus made out his case to the effect that the title of the Union Granite Company to the tubs was paramount to that acquired by Mrs. Weinfeld from the plaintiff and by the plaintiff from the defendants. I agree with the opinion of Mr. Justice Giegerieh that the judgment and proceedings in the replevin action were incompetent against these defendants, so far as proof of title was concerned.
If the Union Granite Company had not complied with section 115 of the Lien Law, it would have been necessary for the plaintiff to show that, within a year after the refiling of the contract, a replevin suit had been started and that it had continued to a time subsequent to the purchase of the property by Mrs. Weinfeld, in order to show that the Union Granite Company was protected against subsequent purchasers, although it had not refiled the contract a second time; and to this extent the record in the replevin suit might have been competent against these defendants. But the filing of the contract could not operate as constructive notice in the case of such duplicate contracts (Baldinger v. Levine, 83 App. Div. 130), and there seems to have been no necessity for the plaintiff to have offered any evidence in regard to the replevin suit.
Under the Baldinger case, supra, no protection was afforded the vendor by filing the contract or beginning the replevin suit. The protection came from executing the *488duplicate contracts and delivering one of them to the purchaser.
In my opinion it is not ne'cessary to decide the very interesting question as to what presumption is to be indulged in regarding the performance of the condition of payment contained in the bill of sale.
The case was evidently tried by both counsel on the theory that the tubs had not been paid for, and the following colloquy between counsel appears to me to imply a concession of that fact by defendants’ counsel:
“ Plaintiff’s counsel: I will make another statement. It is conceded by both sides that the plaintiff had no notice of the status of the tubs or that the title thereto was in any other person but the defendants, or that he had notice of the bill of sale, or that he had notice of the said suit which resulted in the said judgment in the Supreme Court. Defendants’ counsel: That is conceded; yes.”
The case of Ryan v. Wollowitz, 25 Misc. Rep. 498, was a case where there was no evidence of payment by the vendee for the goods attempted to be recovered from the defendants. The words used by this court in that case seem to me to apply to this: “ There is no direct evidence that the goods were not paid for by Spitalsky (the original vendee), but it seems to have been assumed on the trial that they were not paid for by him.”
I do not think we should send plaintiff back for a new trial for lack of direct proof of a fact which seems to me to have been assumed by both counsel and to have been practically conceded by the defendants. Keither in their motions to dismiss nor in their briefs before this court have defendants suggested such a claim.
The judgment should be affirmed in my opinion.
Judgment reversed and new trial ordered with costs to appellants to abide event.