## Facts

- Arnold Friedman, an American painter, died intestate in 1946; his unsold paintings passed to his widow, Renée (also referred to as Wilhelmina).
- In 1963, Renée delivered the body of unsold works to art dealer Charles Egan under a written agreement drafted by Egan’s attorney; Renée lacked counsel.
- The agreement contemplated Egan exhibiting and selling the paintings and splitting sale proceeds with Renée, but it also contained language Egan later claimed transferred title to him.
- Over approximately 13 years, Egan held one exhibition and sold one painting.
- After Renée’s death in 1976, her daughter, as administratrix of Renée’s estate, demanded return of the paintings; Egan refused, asserting ownership under the 1963 agreement.
- The Surrogate’s Court ruled the 1963 agreement was a consignment/agency arrangement, not a sale, and ordered Egan to deliver the paintings to the estate; Egan appealed.

## Issues

1. Whether the 1963 agreement transferred title to the dealer as an outright sale or instead created a consignment/agency relationship to sell on the owner’s behalf.
2. If the agreement was a consignment, whether the dealer’s authority to retain the paintings continued after the owner’s death against the estate’s demand for return.

## Decision

- The Appellate Division affirmed the Surrogate’s Court judgment.
- The court held the 1963 agreement created a consignment/agency relationship rather than an outright sale.
- Because title did not pass to Egan, he was required to return the paintings to the estate upon demand.

## Legal Principles

- In determining whether a transaction is a sale or a consignment, courts look to the parties’ intent as shown by the agreement’s operative structure and the parties’ conduct.
- An arrangement providing the owner a percentage of future sale proceeds, rather than a fixed purchase price, is strong evidence of consignment rather than sale.
- Contract ambiguities may be construed against the drafting party, particularly where the drafter is the sophisticated party and the other party lacked counsel.
- A consignee’s authority to possess and sell property is terminable and does not confer perpetual rights to retain the consigned property against the owner or the owner’s estate.

## Conclusion

The court treated the dealer’s possession of the paintings as a revocable consignment, not a transfer of ownership, and required the dealer to turn over the works to the administratrix because the estate retained title and could terminate the dealer’s authority.


In re Estate of Friedman, 64 A.D.2d 70, 407 N.Y.S.2d 999 (N.Y. App. Div. 2d Dep’t 1978)