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IN RE WINNER

September 21, 1937

In re WINNER


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Motion for an order to dismiss the petition to review filed by the Hudson & Terraplane Sales Corporation and for an order confirming the referee's order directing turnover.

The referee has directed the Hudson & Terraplane Sales Corporation to turn over forthwith to the trustee in bankruptcy herein a 1937 model Hudson automobile bearing license number Y2909.

 The facts are not in dispute; namely, that the bankrupt was in the employ of the said corporation from the month of January, 1937, until the filing of his petition herein, which apparently took place about June 1st.

 His duties were to promote the sale in Kings County of Hudson automobiles and, in that calling, he came into possession of the car in question. It is necessary to decide whether he was the owner of the car, for, if he was, the order of the referee was correct. The evidence discloses that this car was covered by car invoice No. 9643 of the Hudson & Terraplane Sales Corp., Detroit, Michigan, which is in evidence, covering: Car No. 734177, motor No. 94246, "No. 73 Sedan EGJZOT $689.26 Option P O 7.00 Option T 15.75 Freight 39.33 $751.34 Added Accessories Option R 5.00 Radiator Grill Guard 1.35 $757.69

 "Charge to Mr. John J. Winner (Wholesale Traveler)

 "310 W. 68th St., New York City

 "Date March 6, 1937."

 On the same date the bankrupt executed and delivered to his employer a promissory note payable to its order for the latter amount at Detroit, which contains the folowing:

 "For value received. Each and every party to this instrument, either as maker, endorser or otherwise, hereby waives presentment for payment, demand, notice of dishonor, protest and notice of protest thereof. Hudson Sedan Ser. #734177 Mot. #94246."

 The transaction thus evidenced, together with the delivery of the car to the bankrupt, would seem to constitute a sale of goods within section 82 of the Personal Property Law of the State of New York (Consol.Laws N.Y. c. 41).

 It is sought to be avoided by the employer on the theory that a sale of the automobile was not intended by either party, and that the forms employed were for convenience only, and that, in fact, title to the automobile did not pass from the employer to the bankrupt.

 The testimony shows that the car was registered in the individual name of the bankrupt, and the certificate of registration was issued to him, while all maintenance costs such as gasoline, oil and insurance other than collision, were paid for by the employer.

 As to those items, it is clear that whether the company or the individual paid them, is not controlling on the ...


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