Appliance Buyers Credit Corp. v. Kramsdorf

Neither the bringing of an action by the seller for the recovery of the whole or any part of the purchase price under a conditional sales contract, nor the recovery of judgment in such action nor the collection of a portion of the price, *952shall be deemed inconsistent with a later retaking of the goods as provided in section 76 of the Personal Property Law. However, such right of retaking shall not be exercised by the seller after he has collected the entire price, or after he has claimed a lien upon the goods, or attached them or levied upon them as the goods of the buyer (Personal Property Law, § 80-d). The holding of the court below, that plaintiff had made a binding election of remedies by suing in the Municipal Court for the purchase price and thereby affirmed title to the air conditioner in the defendant, and that such action precludes plaintiff from subsequently bringing an action for replevin and damages for unlawful withholding and the granting of summary judgment to defendant thereon was erroneous and contrary to law.

The order granting defendant summary judgment should be reversed, with $10 costs; plaintiff’s motion for summary judgment granted and the matter remanded to the Civil Court of the City of New York for assessment of damages.

Concur — G-old, J. P., Capozzoli and Tilzer, JJ.

Order reversed, etc.