§ 64-a. Discharge of lien of contract for conditional sale of chattels attached to real property. The lien upon real property of a contract for the conditional sale of goods and chattels, attached or to be attached to a building, filed as provided in this article in the office of a register of deeds or county clerk, may also be discharged in the following manner: Either before or after the beginning of any action or proceeding to enforce the lien upon such property of any such contract, the owner of such real property or of the building thereon may execute an undertaking with two or more sufficient sureties, who shall be freeholders, to the clerk or register of deeds of the county where the premises are situated, in such sum as a justice of the supreme court or the county judge may direct, not less than the amount due and to become due upon such contract, conditioned for the payment of any judgment which may be rendered against such real property or building on account of such contract. The sureties shall together justify in double the sum named in the undertaking. A copy of the undertaking, with notice that the sureties will justify before a justice of the supreme court or the county judge at the time and place therein mentioned, must be served upon the conditional vendor or his attorney not less than five days before such time. Upon the approval of the undertaking by the judge or justice an order shall be made discharging such lien. The execution of any such bond or undertaking by any fidelity or surety company authorized by the laws of this state to transact business, shall be equivalent to the execution of such bond or undertaking by two sureties; and such company, if excepted to, shall justify through its officers or attorney in the manner required by law of fidelity and surety companies. Any such company may execute any such bond or undertaking as surety by the hand of its officers, or attorney, duly authorized thereto by resolution of its board of directors, a certified copy of which resolution, under the seal of such company, shall be filed with each bond or undertaking. If the conditional vendor cannot be found, or does not appear by attorney, such service may be made by leaving a copy of such undertaking and notice at the conditional vendor's place of residence or if a corporation at its principal place of business within the state as stated in the contract, with a person of suitable age and discretion therein, or if the house of his abode or its place of business is not stated in said contract and is not known, then in such manner as the court may direct. The premises, if any, described in the contract as the vendor's residence or place of business shall be deemed his said residence or its place of business for the purposes of said service at the time thereof, unless it is shown affirmatively that the person serving the papers or directing the service had knowledge to the contrary. (Added by L. 1917, ch. 697, in effect May 31, 1917.) § 65. Sale of property retaken by vendor. Whenever articles are sold upon the condition that the title thereto shall remain in the vendor, or in some other person than the vendee, until the payment of the purchase price, or until the occurrence of a future event or contingency, and the same are retaken by the vendor, or his successor in interest, they shall be retained for a period of thirty days from the time of such retaking, and during such period the vendee or his successor in interest, may comply with the terms of such contract, and thereupon receive such property. After the expiration of such period, if such terms are not complied with, the vendor, or his successor in interest, may cause such articles to be sold at public auction. Unless such articles are so sold within thirty days after the expiration of such period, the vendee or his successor in interest may recover of the vendor the amount paid on such articles by such vendee or his successor in interest under the contract for the conditional sale thereof. Derivation: Lien Law, L. 1897, ch. 418, § 116, as amended by L. 1900, ch. 762, § 1. § 66. Notice of sale. Not less than fifteen days before such sale, a printed or written notice shall be served personally upon the vendee, or his successor in interest, if he is within the county where the sale is to be held; and if not within such county, or he cannot be found therein, such notice must be mailed to him at his last known place of residence. Such notice shall state: 1. The terms of the contract. 2. The amount unpaid thereon. 3. The amount of expenses of storage. 4. The time and place of the sale, unless such amounts are sooner paid. Derivation: Lien Law, L. 1897, ch. 418, § 117. § 67. Disposition of proceeds. Of the proceeds of such sale, the vendor or his successor in interest may retain the amount due upon his contract, and the expenses of storage and of sale; the balance thereof shall be held by the vendor or his successor in interest, subject to the demand of the vendee or his successor in interest, and a notice that such balance is so held shall be served personally or by mail upon the vendee or his successor in interest. If such balance is not called for within thirty days from the time of sale, it shall be deposited with the treasurer or chamberlain of the city or village, or the supervisor of the town where such sale was held, and there shall be filed therewith a copy of the notice served upon the vendee or his successor in interest and a verified statement of the amount unpaid upon the contract, expenses of storage and of sale and the amount of such balance. The officer with whom such balance was deposited shall credit the vendee or his successor in interest with the amount thereof and pay the same to him on demand after sufficient proof of identity. If such balance remains in possession of such officer for a period of five years, unclaimed by the person legally entitled thereto, it shall be transferred to the funds of the town, village or city, and be applied and used as other moneys belonging to such town, village or city. Derivation: Lien Law, L. 1897, ch. 418, § 118. ARTICLE 5. (Entire article added by L. 1911, ch. 571, in effect Sept. 1, 1911.) SALES OF GOODS. SECTION 82. Contracts to sell and sales. 83. Capacity; liabilities for necessaries. 84. Form of contract or sale. 85. Statute of frauds. 86. Existing and future goods. 87. Undivided shares. 88. Destruction of goods sold. 89. Destruction of goods contracted to be sold. 90. Definition and ascertainment of price. 91. Sale at a valuation. 92. Effect of conditions. 93. Definition of express warranty. 94. Implied warranties of title. 95. Implied warranty in sale by description. 96. Implied warranties of quality. 97. Implied warranties in sale by sample. 98. No property passes until goods are ascertained. 99. Property in specific goods passes when parties so intend. 100. Rules for ascertaining intention. 101. Reservation of right of possession or property when_goods are shipped. 102. Sale by auction. 103. Risk of loss. 104. Sale by a person not the owner. 105. Sale by one having a voidable title. 106. Sale by seller in possession of goods already sold. 107. Creditors' rights against sold goods in seller's possession 109. Negotiation of negotiable documents by delivery. 110. Negotiation of negotiable documents by indorsement. 111. Negotiable documents of title marked "not negotiable." 114. Rights of person to whom document has been negotiated. 116. Transfer of negotiable document without indorsement. 117. Warranties on sale of document. 118. *Indorsement not a guarantee. So in original. SECTION 119. When negotiation not impaired by fraud, mistake or duress. 120. Attachment or levy upon goods for which a negotiable document has been issued. 121. Creditors' remedies to reach negotiable documents. 122. Seller must deliver and buyer accept goods. 123. Delivery and payment are concurrent conditions. 124. Place, time and manner of delivery. 125. Delivery of wrong quantity. 126. Delivery in installments. 127. Delivery to a tarrier on behalf of the buyer. 128. Right to examine the goods. 129. What constitutes acceptance. 130. Acceptance does not bar action for damages. 131. Buyer is not bound to return goods wrongfully delivered. 132. Buyer's liability for failing to accept delivery. 133. Definition of unpaid seller. 134. Remedies of an unpaid seller. 135. When right of lien may be exercised. 136. Lien after part delivery. 137. When lien is lost. 138. Seller may stop goods on buyer's insolvency. 139. When goods are in transit. 140. Ways of exercising the right to stop. 141. When and how resale may be made. 142. When and how the seller may rescind the sale. 143. Effect of sale of goods subject to lien or stoppage in transitu. 144. Action for the price. 145. Action for damages for non-acceptance of goods. 146. When seller may rescind contract or sale. 147. Action for converting or detaining goods. 148. Action for failing to deliver goods. 149. Specific performance. 150. Remedies for breach of warranty. 151. Interest and special damages. 152. Variation of implied obligations. 153. Rights may be enforced by action. 154. Rule for cases not provided for by this article. 155. Provisions not applicable to mortgages. 156. Definitions. 157. Article does not apply to existing sales or contracts to sell. 158. No repeal of uniform warehouse receipt laws or uniform bills of lading laws. 82. Contracts to sell and sales. 1. A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a me sideration called the price. 2. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. 3. A contract to sell or a sale may be absolute or conditional. 4. There may be a contract to sell or a sale between one part owner and another. (Added by L. 1911, ch. 571, in effect Sept. 1, 1911.) § 83. Capacity; liabilities for necessaries. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery. (Added by L. 1911, ch. 571, in effect Sept. 1, 1911.) § 84. Form of contract or sale. Subject to the provisions of this article and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties. (Added by L. 1911, ch. 571, in effect Sept. 1, 1911.) 85. Statute of frauds. 1. A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary` |