(dissenting):
This action was brought to recover possession of a soda-water apparatus which was designated as the “ Druggist’s Pride.” The plaintiff by an instrument dated the 27th of June, 1876, delivered it to A. "W. Bell for $1,152, accepting in part payment an old apparatus for which a credit was given of $452, the balance to be paid in installments by several notes which were stated in the contract.
It was provided in the instrument that upon full payment of the several notes all claim and title to the property on the part, of the plaintiff should cease and the whole title vest in the lessee as owner; but upon a breach the possession of the property should terminate and that the plaintiff might enter the premises where the property might be and resume the possession of the same without process of law and without let or hindrance from the lessee. The amount due upon the notes was stated to be $'234.32, with interest, no part of which had been paid. Mr. Bell sold the apparatus to Mr. Cranford, who paid the plaintiff $150 on account of the debt due upon it. Cranford sold it to 'William 8. Schieffelin & Co., and they sold it to the defendant, of all of which the plaintiff had notice. The defendant purchased the apparatus for a valuable consideration and without any notice of any claim of title to it in the plaintiff.
The learned justice in the court below came to the conclusion that the legal rules applicable to the transactions between the different parties were enunciated in Hintermister v. Lane (27 Hun, 497) and the recent decision of the Court of Appeals in Comer v. Cunningham (77 N. Y., 391), and the cases cited in the opinion of the court in that case; and his judgment rests upon the proposition necessarily that this was a sale and purchase, and not a bailment of personal property with the privilege to the bailee to purchase. It cannot be distinguished from the case of Hintermister v. Lane (supra), in which a Swiss organ was leased, to be paid for by notes, *484the payment of which at maturity was to be a receipt in full against the instrument; and upon the further proposition enunciated, as evolved from an examination ofilhe cases in Comer v. Curmingham (supra), that where there is a sale and delivery, though the delivery between the parties is conditional, a tona fide purchaser from the Vendee obtains a good title.
It will have been observed that there was no arrangement between the original parties for the sale and purchase of the apparatus, that the vendee or lessee should pay anything for the use of it. In Austin v. Dye (46 N. Y., 500), the principle of the decision, which seems to be in conflict with the views' herein stated and those of Judge Lawbbnoe, was that one having possession of personal property .as bailee, with an executory and conditional agreement for its purchase, the condition not having been performed, could give no title to a purchaser, although the latter acted in good faith and parted with value without notice of a want of title. But, as said in Comer v. Cunningham (supra), in that case the vendee was to pay hire for the oxen until he should pay a specified sum, in a specified manner, in lumber, and then he was to become the owner. In this case it will have been observed, also, that the greater part of the sum agreed upon for the apparatus was paid, indeed, nearly half of it, at the time the contract was executed.
It is not necessary to examine any of the exceptions, for the reason that the judgment herein was pronounced upon the abstract proposition that. there was a sale and delivery of the property .under circumstances such as to shield an innocent purchaser without notice from any claim that might be asserted on the part of the plaintiff.
The views of Justice LawbeNoe are adopted and the judgment appealed from is affirmed, with costs.
Judgment reversed, new trial ordered, costs to abide event.