Colonial Discount Co., Inc., Appellant, v. Milton H. Goodfriend and Abraham E. Goodfriend, Respondents

Colonial Discount Co., Inc., Appellant, v. Milton H. Goodfriend and Abraham E. Goodfriend, Respondents. [MAJORITY] Judgment reversed upon the law, with costs, and judgment directed for the plaintiff for $2,086, with interest and costs. This record presents but a question of law. We are of opinion that the consideration for the note in suit did not fail, for the reason that title to the truck passed to defendant Milton H. Goodfriend without delivery. (Pers. Prop. Law, § 100, rule 1 ; Groat v. Gilo, 51 N. Y. 431; Bradley v. Wheeler, 44 id. 495.) Further, in no event was there a failure of consideration as plaintiff gave value for the note before maturity and before the-breach of the agreement to deliver. (Tradesmen’s Nat. Bank v. Curtis, 167 N. Y. 194.) Lazansky, P. J., Rich, Hagarty and Scudder, JJ., concur; Kapper, J., dissents upon the ground that the plaintiff’s financing was based upon the sale and delivery to defendants of a truck never delivered, and hence there was no consideration for the note. Added by Laws of 1911, chap. 571, known as the Sales of Goods Act.-— [Rep