Supreme Court, July, 1900. [Vol. 32. is to be given to the irregular votes at the regular meeting in 1899, nor to the result of that meeting as declared, and for that reason the motion for the writ of mandamus should be denied, with ten dollars costs to the respondents. Motion denied, with ten dollars costs to respondents. THE WESTINGHOUSE ELECTRIC AND MANUFACTURING COMPANY, Plaintiff, v. THE NEW PALTZ AND POUGHKEEPSIE TRACTION COMPANY, Defendant. (Supreme Court, Dutchess Trial Term, July, 1900.) Lien Law, L. 1897, ch. 418 Unless the contract of a sale of chattels is acknowledged and recorded, the rights of an unpaid vendor, with condition precedent of payment, are lost as against subsequent purchasers in good faith. A railroad company which had mortgaged all its property, acquired and to be acquired, to secure its bonds, subsequently purchased chattels of the plaintiff upon a condition precedent of payment, but the contract of sale was never acknowledged and recorded as required by the Lien Law (L. 1897, ch. 418, § 111). Before full payment had been made by the railroad company, the mortgage was foreclosed, the bondholders, by a committee, purchased all the property by surrendering their bonds and paying the balance of their bids in cash, organized the defendant, assigned their bids to it, and, after conveyance in foreclosure had been made to it, it refused to surrender the chattels to the plaintiff. Held, that the bondholders, the assignees of the defendant, were "subsequent purchasers ** in good faith" within the meaning of the Lien Law, and that the failure to acknowledge and record the contract of sale in the manner required by that statute made the sale void as to the defendant, and entitled it to hold the chattels as against the plaintiff. ACTION for damages for conversion of chattels. The New Paltz & Walkill Valley Railway Co. obtained the said chattels from the plaintiff under a written contract of conditional sale, i. e., that the title thereto should not pass from seller to buyer until the purchase price had been paid in full in specified installments. Upon delivery of the said chattels the said railway company paid the plaintiff Misc.] Supreme Court, July, 1900. one third of the purchase price, but never paid any of the balance. Prior to such conditional purchase the said railway company had given a mortgage covering all of its property in the usual terms of such mortgages, viz., in terms, on all the property it then had and on all that it should afterwards acquire, to secure an issue of bonds under such mortgage. That mortgage has been foreclosed since the said conditional purchase of such chattels. The holders of the bonds issued under the said mortgage purchased at the foreclosure sale through a committee appointed by them for that purpose under an agreement among the bondholders to so purchase and organize a new corporation to take the property and run the railroad. The amount of the bid of the said bondholders at the sale was $10,000 in excess of the amount of their bonds, and they paid such bid by surrendering such bonds and paying the said $10,000 in cash. They then organized this defendant corporation and assigned their said bid to it, and the foreclosure conveyance was made to it, and it took possession of all of the property, and refused to deliver these chattels to this plaintiff. Seward, Guthrie & Steele for plaintiff. William D. Leonard for defendant. GAYNOR, J.: The lien of the railroad company mortgage attached to these after-acquired chattels (Platt v. N. Y. & S. B. R. Co., 17 Misc. Rep. 22; 9 App. Div. 87), but of course only to the extent of the rights the mortgagor acquired therein (United States v. New Orleans, 12 Wall. 362; Fosdick v. Schall, 99 U. S. 235; Meyer v. Car Co., 102 U. S. 1). The only right of the said mortgagor in the said chattels was to complete the conditional purchase it had made of them by paying for them in the installments agreed upon, and to have possession of them meanwhile. Until then this plaintiff, the seller thereof to the said mortgagor, retained the title to them. The foreclosure sale could convey only the rights in the said chattels which the mortgagor and mortgagee could unitedly convey (Code Civ. Pro., § 1632; The Rector, &c. v. Mack, 93 N. Y. 488). They could not convey a complete title thereto; no more could the foreclosure sale (Ballard v. Burgett, 40 N. Y. 314; Austin v. Dye, 46 N. Y. 500). It follows that this defendant did not through the foreclosure sale get title to the said chattels as Supreme Court, July, 1900. * * * [Vol. 32. against this plaintiff (from whom the title thereto had never passed to the said mortgagor), unless by operation of section 111 or section 112 of the Lien Law (chapter 418 of the Laws of 1897; i. e. chapter 49 of General Laws). The former section provides that a contract that the title to " any railroad equipment or rolling stock" sold to a railroad company shall remain in the vendor until the purchase price is paid "shall be invalid as to any subsequent creditor of or purchaser from such vendee for a valuable consideration and without notice", unless such contract is in writing, and acknowledged and recorded as though a real estate mortgage, in the county in which is located the place of business or principal office of the vendee. This requirement that the contract be acknowledged and recorded was not complied with. The mortgagee, it is true, was not a "subsequent " creditor or purchaser; on the contrary, the mortgage was given by the vendee prior to its conditional purchase of the chattels. But the purchasers at the foreclosure sale (who assigned their bid to this defendant) were "subsequent" purchasers. If the said mortgagor (the conditional vendee) had sold and delivered the said chattels to a purchaser for value and without notice, or if the mortgagor and mortgagee had unitedly done so, such purchaser would have got a perfect title by operation of this statute. It follows that the purchasers at the foreclosure sale got such a title. If the said chattels are not embraced in the said section 111 (i. e. in the words "railroad equipment and rolling stock "), but within section 112 (which is general), the result is the same. The failure to file the agreement as there required makes good the title of "subsequent purchasers, pledgees or mortgagees in good faith." That the holders of the bonds purchased at the foreclosure sale does not make a different case. A bondholder, or any creditor of the mortgagor, was on the same footing as a purchaser at such sale as any other third person without notice of this plaintiff's ownership of the chattels. The fact of his being such bondholder or creditor could not impute such notice to him as a purchaser at the foreclosure sale any more than if he had purchased of the mortgagor, or of the mortgagor and mortgagee united, without a foreclosure. Judgment for the defendant. Misc.] Supreme Court, Appellate Term, July, 1900. THE STINESVILLE AND BLOOMINGTON STONE COMPANY, Respondent, v. GEORGE W. WHITE, Appellant. (Supreme Court, Appellate Term, July, 1900.)' 1. Attorney's offer to arbitrate a claim Ratification Evidence. Where an attorney, retained to collect a claim for stone sold, submits it to arbitration, and his act is ratified by his client, the award and its performance by the vendee are a good defense to him against a subsequent action for the price, and it is erroneous for the trial court to exclude proof of them in such an action. 2. Same Scope of arbitration. Where the attorney's offer to arbitrate states that the vendor is perfectly willing that a person named therein "should go over your (the vendee's) accounts, measurements and adjustment, and everything else which you desire to exhibit", the arbitrator does not exceed his authority if he considers and makes an award for disputed items of excess freight, and for measurement of the stone while in the cars by which it was shipped. 3. Attorney's admissions after retainer. A letter of the attorney, written after retainer but before action brought and apparently in the presence of his client, in which he refers to the arbitration, complains of the award as too small, and returns a check of the vendee as inadequate, is admissible against the vendor, as proof that there had been an arbitration and offer of performance, and, therefore, the exclusion of the letter upon the trial is erroneous. Beekman, P. J., dissented. APPEAL from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term, entered on the verdict of a jury, in favor of the plaintiff, for the sum of $2,481.96, which was reduced by the General Term to $2,446.96, damages, interest and costs. Parsons, Shepard & Ogden, for appellant. Jacob Fromme, for respondent. Per Curiam. The action was commenced on July 11, 1895, and is brought to recover for merchandise, consisting of stone, sold and delivered to the defendant by the plaintiff, at prices agreed Supreme Court, Appellate Term, July, 1900. [Vol. 32. upon, and of the reasonable value in the aggregate of $6,068.07. The defenses are breach of warranty, arbitration and award, and performance of the award. The defendant did not pay the plaintiff's claim in full for the stone, and considerable negotiations took place between the parties. The president of the plaintiff, Mr. Jas. S. Williams, came to New York early in April, 1895, apparently for the purpose of collecting from the defendant the amount of the plaintiff's claim. On or before April 13, 1895, Mr. Williams placed the claim in the hands of Jacob Fromme, Esq., an attorney and counsellor-at-law of this city, for collection. On April 13, 1895, Mr. Fromme wrote to the defendant, informing him of his retainer by the plaintiff, and added: "If the above amount is not paid to me, at my office, on or before Monday, April 22, 1895, I shall have to resort to legal proceedings for the recovery thereof." On this same day whether before or after the receipt of Mr. Fromme's letter does not appear the defendant wrote to Mr. Williams inclosing two notes of $500 each, and stating as follows: "As soon as we get an adjustment of the stone, I will likely send you check for the balance of the account." It should be noted here, as we have already seen, that the return for a considerable portion of the stone had not at this time reached the plaintiff. On April 19, 1895, Mr. Fromme wrote the defendant, returning these two notes for $500 cach, that the defendant had sent to the plaintiff, and stating in the letter that Mr. Williams had forwarded them, with instructions to return them at once; and Mr. Fromme then reiterated the demand for a settlement at his office, contained in his letter of April thirteenth above mentioned. During the cross-examination of the defendant, the plaintiff introduced in evidence this letter of April nineteenth. Upon the redirect examination of the defendant, his counsel offered in evidence a letter written by Mr. Fromme two days before the commencement of this action, which letter defendant testified he received about the time of its date, to wit, July 9, 1895. It was objected to by the plaintiff's counsel as incompetent, and excluded on the ground that it was not shown that Mr. Fromme was authorized by the plaintiff to write the letter. To this ruling the defendant's counsel duly excepted. The letter is as follows: "GEORGE W. WHITE, Esq. "DEAR SIR.- When Mr. Arlando Marine was requested and designated by me to go over with you your accounts with the |