Baumann v. Libetta — 3 Misc. 518

Majority

p. 518

Baumann v. Libetta.

(New York Common Pleas

General Term,

May, 1893.)

Headnote

Plaintiff’s assignor sold to one S., residing in Brooklyn but doing business in the city of New York, certain articles of merchandise, taking a chattel mortgage thereon for a part of the purchase money. ■ The mortgage was filed in the city of New York, but not in Brooklyn. Thereafter defendant, without knowledge of this mortgage, in good faith and for a valuable consideration, purchased the business of S., and the goods in said mort.-gage described. The mortgage having become due, plaintiff demanded payment of the same from defendant, and this having been refused, sued to recover the value of the goods. Held, that plaintiff’s mortgage should have been filed in the city of Brooklyn, and the failure so

p. 519

to do rendered it void as against defendant. . The fact that the mortgagor was described in the mortgage as of the city.of New York does not take the case out of the rule.

Appeal from a judgment rendered in a District Court of the city of Hew York. The opinion states the case.

George Halm, for plaintiff (appellant).

Vilo, Ruebsa/men ds Cochran, for defendant (respondent).

This action was brought to recover the sum of §100 alleged to be the value of certain carpets and other articles of furniture claimed by the plaintiff to he his property and to have been converted by the defendant. The answer was a general denial.

From the return it appears that the plaintiff’s assignor was a retail dealer in furniture in the city of Hew York. On the 4th of January, 1892, one Ferdinand Servat bought of plaintiff’s assignor the articles in question for the sum of §249.90, and directed that the goods should be sent to Ho. 131 West Twenty-third street, Hew York city. Servat at the time paid on account of the purchase the sum of forty dollars, and executed a chattel mortgage on the goods to the plaintiff’s assignor to secure the payment in installments of the remainder of the purchase money. This mortgage was afterwards and before the commencement of tliis action assigned to the plaintiff, and the same was filed in the office of the register of the city and county of Hew York, but no copy was at any time filed in Kings county. It further appears that the purchaser had a place of business at Ho. 131 West Twenty-third street, in the city of Hew York, but at no time lived there or had any residence in the city and county of Hew Y"ork, but lived with his family in the city of Brooklyn, in the county of Kings. On the 19th of April, 1892, the purchaser sold his business and the goods sued for in this action to the defendant herein and one Dell Aquila, for the sum of §1,600, which was the full value of the business and the goods; that the purchase was made in good faith and without any knowledge of the existence

p. 520

of the mortgage on the part of the purchasers, and that subsequently the said Dell Aquila sold his interest to the wife of the defendant. After this sale by Servat, he failed to pay the installments due under the mortgage, and was in arrears therefor. -The defendant took possession of the goods at the time of the sale, and remained in possession until the commencement of this action, and the plaintiff demanded the goods from him before it was commenced, and he refused to deliver them. The mortgage itself recites that Servat, at the time of making the mortgage, resided in the city and county of New York; and it is now claimed that this estops the defendant from claiming that it was not the actual residence of his grantor, Servat. But the Laws of 1833, chapter 279, relating to the filing of chattel mortgages, provide that the mortgage shall be filed in the city where the mortgagor shall reside at the time of the execution thereof. This residence was determined by the judge who tried the case to have been at the time in the city of Brooklyn, county of Bangs, and indeed he could not have found otherwise from the evidence. The statute is so direct in its language as to admit in our judgment of no other conclusion than that arrived at by the justice below. This very question has been before the United States Circuit Court for this Circuit and Blatchfoed, J., in the course of his decision stated that “ the statute had imposed a rigid and unbending condition, to wit, a filing in the place where the mortgagors actually reside, as a preliminary to the validity of the mortgage. "Whether this condition is wise or not, whether convenient or difficult of performance, is not for the courts to say. The statute exacts it and the courts must see that it is performed.” Platt v. Stewart, 13 Blatchf. 481 , which was affirmed by the Supreme Court of the United States in 101 U. S. 737 . Nor will the fact that the mortgage itself recited that the mortgagee was a resident of the city and county of New York, take the case out of this rule. This was expressly held by Nelson, Ch. J., in Chandler v. Bunn, Hill & Den. Supp. 167, where he said: “ The recital of the residence in the mortgage seems to be of no importance, and

p. 521

might for the matter of security be omitted altogether.” It certainly was no notice to the defendant whom the justice below held to have purchased in good faith. He was not bound to look to any other city or county than the one in which the mortgagor resided, to ascertain whether or not a mortgage had been filed. The law imposed no such duty upon him. Besides, the recital in the mortgage was nothing more than a declaration of the mortgagor as to his residence, and the declarations of mortgagors of personal property are not evidence against a bona Jide purchaser of such property. Marsh v. Kinney, 11 Wkly. Dig. 144 ; Hurd v. West, 1 Cow. 752 ; Whitaker v. Brown, 8 Wend. 490 ; Latimer v. Lord, 17 Wkly. Dig. 510 .

The judgment should, therefore, be affirmed, with costs.

Bisohoee, J., concurs.

Judgment affirmed.

Cases cited

Whitaker v. Brown 8 Wend. 490 N.Y. Ct. Err. p. 521