The delivery of the property by the plaintiff was not alone conditional, as it was in Comer v. Cunningham (77 N. Y., 391), but the title itself was conditional on the final and complete payment to be made by the purchaser. The transaction was no more than a conditional sale, the title remaining in the plaintiff until complete payment should extinguish the condition. That never was made, and the default entitled the plaintiff to recover the possession of the property under the authority of Ballard v. Burgett (40 N. Y., 814) and Austin v. Dye (46 id., 500.)
The judgment should be reversed and a new trial ordered, with costs to abide the event.
Davis, P. J.:Upon the facts of this case, as shown by the evidence, there was no sale of the property with a conditional delivery, but an agreement to sell upon the performance of the conditions stipulated in the written instrument. The property meanwhile was to be held under the lease made between the parties, which entitled the lessee to possession and the right of use so long as he paid the stipulated installments of rent, but on default his right of possession arid use was at once to terminate, with full power on the part of plaintiff to retake possession. This instrument was not in the nature of a mortgage or mere security for the payment of installments to fall due on a purchase, and need not, therefore, be filed as a mortgage., -No title vested or could vest in the lessee till by the terms of the *483contract, by payment of the rent, the contract was to terminate by a transfer of title at that time.
I think the case is within the authorities cited by Justice Daiíiels, and not those relied upon by the defendant’s counsel. I think, therefore, that the judgment must be reversed, etc.