cause of action is based upon section 65 of the personal property law (Consol. Laws 1909, c. 41), which provides as follows: "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." It is admitted by the defendant that it has not since it resumed possession of these machines sold them at public auction as provided in the statute. It resists on two grounds the liability therein imposed. First, it contends that the section in question does not apply to a case where the vendee voluntarily returns the property, and there is a mutual rescission of the contract; second, it claims that by the express terms of the contract of sale the conditional vendee had waived the provisions of the statute. [1] As to the first ground, the evidence taken at the trial shows that, after the unsuccessful attempt of the trustee in bankruptcy to sell the bankrupt's interest in the machines, the defendant's representative, Weiner, asked leave from the trustee to remove the machines in question, and the trustee gave him permission to do so, leaving to the landlord of the premises, who was standing by, the fixing of the time in which the machinery was to be removed. As under the express terms of the contract of conditional sale the defendant had a legal right to resume possession of these machines, as the vendee was in default, the acquiescence of the trustee in the defendant's request to be allowed to remove them cannot be held to constitute a waiver or voluntary surrender of the trustee's legal interest therein, for it was the legal duty of the trustee under such circumstances to permit the defendant to retake the machines. [2] As to the alleged waiver of the statute by the contract of conditional sale, the material provisions of the contract are as follows: "In case of default in any one of such deferred payments above specified, or in case of removal of said goods or any part thereof without your consent, or in the event that I or we shall mortgage or part with the possession, voluntarily or involuntarily, without your consent, of said property or any part thereof, you shall have the right to immediately resume possession of said property wherever it may be found, and remove the same with or without process of law, and you may declare the agreement terminated and may retain all moneys paid hereunder as liquidated damages and rental for said goods." This provision, the defendant asserts, constitutes a waiver of the provisions of section 65 of the personal property law, and likewise of the following sections, 66 and 67, which prescribe the conditions of the man v. Needham Piano & Organ Co., 47 Misc. Rep. 683, 94 N. Y. Supp. 371, the Appellate Term in New York county held that quite similar language in a contract of conditional sale of a piano resulted in a waiver of the provisions of certain provisions of the lien law of 1897 (Laws 1897, c. 418), which are now sections 65, 66, and 67 of the personal property law. In Hoffman v. White Sewing Machine Co., 123 App. Div. 166, 108 N. Y. Supp. 253, a sewing machine had been sold under a contract of conditional sale, which, however, by its terms purported to be a lease, and the installment payments were described as "rent." On default of the vendee in making payments, the vendor retook the machine and neglected to sell it at public auction, and the vendee sued under the statute for the amount paid under the contract before default, and it was held that the vendor could not retain such payments, notwithstanding that the contract had described them as "rent." An examination of the statutes relating to conditional sales shows that there has been much and continuous legislative effort to regulate the rights of the parties to such contracts, in view of the great development in extent of such sales and the numerous evils which sometimes attended them. The legislative policy declared in the lien law of 1897, and continued in the sections of the personal property law above cited, was that, in the event of a retaking by the vendor, there should be a sale at public auction under the provisions of the statute in order that the vendee might regain any excess in value of the article over the amount unpaid on the contract. Whether the law would uphold any agreement in the contract of conditional sale which attempted in advance to waive the provisions of the remedial statute has been doubted strongly. Roach v. Curtis, 115 App. Div. 765, 101 N. Y. Supp. 333; Id., 191 N. Y. 387, 84 N. E. 283. While the law recognizes a free right to contract, it will not enforce all contracts through its remedial processes. [3] Where a contract is against the public policy of the state, it is unenforceable in the courts. Kneettle v. Newcomb, 22 N. Y. 249, 78 Am. Dec. 186; Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48, 35 N. E. 418; Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 62 N. E. 763, 57 L. R. A. 318, 88 Am. St. Rep. 625; Matter of Brown, 176 N. Y. 132, 68 N. E. 145; Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215, 73 N. E. 7. [4] It is true that one may waive any right he possesses, even a constitutional right (People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 450, 67 N. E. 78, 95 Am. St. Rep. 596, and cases cited), but an agreement to waive made in advance in an executory agreement will not be enforced when against the public policy (Kneettle v. Newcomb, ut supra; Litt v. Emery, 80 Hun, 380, 29 N. Y. Supp. 1146). There are some cases in which it has been held that some of the provisions of the statute in relation to the time or circumstances of a sale directed by the statute to be had by a vendor who retook property under a contract of conditional sale might be waived, but in none of these cases was there any attempt to waive, in advance, a subsequent sale itself, as provided by the statute. War 129 N.Y.S.-2 ner v. Zuechel, 19 App. Div. 494, 46 N. Y. Supp. 569; Adler v. Weis & Fisher Co., 66 Misc. Rep. 20, 119 N. Y. Supp. 634; Montague v. Wanamaker, 67 Misc. Rep. 650, 124 N. Y. Supp. 805. In Fairbanks v. Nichols, 135 App. Div. 298, 119 N. Y. Supp. 752, there is considerable discussion as to whether a sale under the statute in question may be waived in advance by the contract of conditional sale, but the court, in sustaining a judgment in favor of a conditional vendor who had neglected to resell at public auction property retaken on a default under the terms of the contract of conditional sale, distinctly and exclusively rested its decision upon the ground that the conduct of the conditional vendee at the time of the retaking by the vendor constituted an estoppel against a claim that the property was surrendered voluntarily and not retaken in the sense of the statute. Even there, there was a dissent by two members of that court. [5] In any event, the provisions of the statute are to be read into every contract of conditional sale. Davis v. Bliss, 187 N. Y. 77, 79 N. E. 851, 10 L. R. A. (N. S.) 458. The clause in the contract in the case at bar, which is claimed to constitute a waiver, is entirely silent as to a subsequent sale as directed by the statute in question. There is therefore no express waiver of the statutory requirements. None should be implied as against the policy of the statute, assuming such a waiver in advance permissible. Roach v. Curtis, 191 N. Y. 387, 391, 84 N. E. 283. The judgment of the Municipal Court in favor of the plaintiff should be affirmed, with costs. All concur. SHERIDAN v. TUCKER. (Supreme Court, Appellate Division, Fourth Department. May 3, 1911.) 1. TAXATION (§ 903*)-TAX ON STOCK TRANSFERS-EFFECT OF FAILURE TO PAY. Laws 1905, c. 241, § 323, provides that no transfer of stock on which a legal tax is imposed, and which tax is not paid "at the time of such transfer," shall be the basis of any action, and shall not be received in evidence. Plaintiff transferred to defendant shares of stock in a domestic corporation without at that time paying the transfer tax, and alleged ignorance and a want of intent to evade the law, and also, after the commencement of his action, offered to affix the requisite number of stamps. Held, that plaintiff could not enforce a claim for the unpaid balance of the purchase price. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 903.*] 2. COURTS (§ 90*)-JUDICIAL PRECEDENT-CO-ORDINATE COURTS. One department of the Appellate Division of the Supreme Court should, even in a doubtful case, accept as controlling the previous unanimous decision of another department, which is not otherwise authoritatively questioned. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 313-321; Dec. Dig. § 90.*] 3. CONSTITUTIONAL LAW (§ 307*)—"DUE PROCESS OF LAW"-WITHDRAWAL OR CHANGE OF REMEDY. Laws 1905, c. 241, § 323, providing that a transfer of stock on which a tax is imposed by law, and which tax is not paid "at the time of such transfer," shall not be the basis of any action or legal proceedings, and that proof thereof shall not be offered or received in evidence in any court in the state, is not unconstitutional as a taking of property without due process of law, since the effect of the statute is not to impose a forfeiture for its violation, but to deny the right of legal enforcement in the courts of the state. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 925; Dec. Dig. § 307.* For other definitions, see Words and Phrases, vol. 3, pp. 2227–2256; vol. 8, p. 7644.] Action by Martin Sheridan against Benjamin M. Tucker. Motion for a new trial upon a case and exceptions ordered to be heard in the first instance in the Appellate Division after a verdict for defendant by direction of the court at the close of plaintiff's case. Exceptions overruled, and motion for new trial denied. See, also, 138 App. Div. 436, 122 N. Y. Supp. 800. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ. James G. Greene (Cogswell Bentley, of counsel), for plaintiff. Henry Selden Bacon, Deputy Atty. Gen., for the Attorney General, intervening. ROBSON, J. Plaintiff seeks to recover of defendant in this action an unpaid balance of the purchase price of 27 shares of the capital stock of a domestic stock corporation sold and transferred by him to defendant on or about March 20, 1907. [1] The ground upon which the court at Trial Term directed the dismissal of plaintiff's complaint was that plaintiff did not at the time of the transfer pay the tax imposed by chapter 241 of the Laws of 1905 as amended by chapter 414 of the Laws of 1906. This defense was duly pleaded by defendant; and plaintiff admits that the tax was not paid. He does claim, and offered to show on the trial, that the omission to pay the tax was on his part inadvertent, and due to ignorance that such tax was required to be paid, and was without any intention of evading the provisions of the law. This evidence was excluded, and plaintiff duly excepted. It seems also to have been conceded that, after the commencement of the action, plaintiff went to the secretary of the corporation with the requisite amount of stamps to pay the tax and offered to affix them. At the close of plaintiff's case, the court directed a verdict for defendant, and plaintiff duly excepted. Plaintiff urges that his transfer of stock to defendant was not immoral, nor illegal, except only so far as it was by the statute made so by reason of his failure to pay the tax, and that no intention of the Legislature to penalize by a forfeiture of one's property an unwitting violation of the statute should be imputed without convincing evidence of such intention. The First Department has considered the effect of this statute and its application to an action to enforce a claim based. upon a transfer of stock upon which the required tax had not been paid. Bean v. Flint, 138 App. Div. 846, 123 N. Y. Supp. 385. In this *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes case Miller, J., after reciting the provisions of the statute in question, continues: "It will be observed that the statute radically differs from those under which it has been held permissible to validate the transfer by subsequently affixing stamps. This statute not only omits to provide for doing that, but distinctly provides that the transfer shall not be made the basis of any action, or legal proceedings, unless the tax is paid 'at the time of such transfer.' The payment of the tax might easily be evaded, if a transfer could be rendered valid by subsequently affixing stamps, and so by language, which does not admit of construction, the Legislature has provided as stated. We think, therefore, that the failure to pay the tax and affix stamps at the time of the transfer is fatal to plaintiff's right of recovery, provided the question is before us." It is true that in this case it was held that defendant was not entitled to the benefit of this defense; but this resulted solely because of his failure to plead it. It is apparent that the effect of such a defense, if properly pleaded, was not only carefully considered by the court, but was directly passed upon, and determined. [2] That uniformity of decision in this court may be fostered, if for no other reason, this branch of the court should, even in a doubtful case, accept as controlling the previous unanimous decision in another department, which is not otherwise authoritatively questioned. [3] Plaintiff's further claim that this provision of the statute is unconstitutional, if it precludes him from recovering upon his contract when he pays the tax, which he has failed to pay only through inadvertence, it being, as is claimed, in effect a forfeiture of his property and a taking thereof without due process of law, does not seem to be tenable. The effect of the statute is not to impose upon the offender, who violates its provisions, either intentionally, or through ignorance, forfeiture of property; but is rather to deny to him the right to enforce by the power of the courts of the state a contract, which he, by his own omission or neglect, has made unenforceable. Like a contract made in this state by a foreign stock corporation, which is doing business in this state without having filed the required statutory certificate, the contract itself may not be invalid; but enforcement of it in the courts of this state cannot be had. Plaintiff's exceptions overruled and judgment ordered for defendant on the directed verdict, with costs. All concur. In re SCUTELLA'S ESTATE. (Supreme Court, Appellate Division, Fourth Department. May 3, 1911.) 1. EXECUTORS AND ADMINISTRATORS (§ 24*) — RIGHT TO ADMINISTRATION ITALIAN CONSULS. The treaty of May 8, 1878 (20 Stat. 732), between the United States and Italy, by article 17, provides that the respective consuls shall enjoy in both countries all the rights and privileges which are or hereafter may be granted to the officers of the same grade of the most favored nation. The treaty of July 27, 1853 (10 Stat. 1009), between the Argentine Republic and the United States, by article 9, provides that, if any citi |