Oforttf U Cam i^rtjool Cibtaty KFN5267!G8Tr9ir""-"'"'^ ^''*iiMKii.SLSMfL!B9.fJ3ages and conditi 3 1924 021 906 155 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021906155 THE LAW OF CHATTEL MORTGAGES AND CONDITIONAL SALES Adapted ro New 7ork State SECOND EDITION By AUSTIN B. GRIFFIN of the Albany Bar and ARTHUR F. CURTIS of the Delhi Bar ALBANY, N. Y. MATTHEW SENDEE & COMPANY, INC. 1916 B7^3<^f^ Copyright, 1912, BY AUSTIN B. GRIFFIN AND ARTHUR F. CURTIS. Copyright, 19i«, BY AUSTIN B. GRIFFIN AND ARTHUR F. CURTIS. PREFACE TO SECOND EDITION The sale of the entire first edition of this work has necessitated the preparation of a new edition. Changes in the Statute have been inserted, also the new cases including 218 E". Y. 160, lYl Appellate Division 640, and 94 Miscellaneous 544. Albany, IST. Y., June, 1916. AUSTIN B. GEIFFIlfr, AETHUR F. CUETIS. PREFACE The necessity for a book upon the New York State law of chattel mortgages and conditional sales is so urgent that the authors feel that an apology for its production is not required. Since the publication in 1900 of the third edition of Mr. Smith's work, no attempt has been made to present in text-book form the law of such contracts. During the past twelve years, the hundreds of new cases upon the law of chattel mortgages, together with the many changes in the statute have rendered older books practically valueless. But while a great change has been taking place in the law of chattel mortgages, a revolution in the law of conditional sales has occurred. Chattel mortgages and contracts of conditional sale are more frequently entered into than any other written contracts. Although they are so common, no other branch of the law affords so many complications; no other legal subject is so honeycombed with pitfalls for the unwary. An almost endless variety of involved questions arises. The decisions of New York State present such a wealth of material upon the law of chattel mortgages and conditional sales that, as a general proposition, the decisions of other jurisdictions have not been consulted. However, it has been thought wise to include the Federal decisions which construe the New York statutes. In the chapters on Mortgages of Vessels and Mortgages in Bankruptcy, cases of other States and of Federal courts have been inserted. All the New York State decisions which an extensive search disclosed have been included to 205 N. Y. 485, 149 App. Div. 640, 76 Misc. 192, 135 N. Y. Supp. 688. Albany, N. Y., August 15, 1912. Austin B. Geiffin. Aethue F. Cuetis. [iii] TABLE OF CONTENTS PART I CHATTEL MORTGAGES CHAPTEE I. NATURE OF CONTRACT, PAGE Bbo. 1. Derivation of Term " Mortgage " 1 2. Definitions .j, 2 3. Different from Real Estate Mortgage 2 4. Incidental to Debt 2 6. Title of Parties , 3 a. Before Default 3 b. After Default 4 CHAPTEE 11. DISTINGUISHED FROM OTHER CONTRACTS. Skc. 1. In General 6 2. Sale 7 3. Construction of Bill of Sale as Mortgage 10 4. Conditional Sale 11 a. In General 11 b. Reservation of Title until Pajonent 11 c. Sale and Conditional Resale 13 6. Pledge 16 a. In General 16 b. Effect of Use of Term " Pledge " 18 c. Delivery of Stocks, Bonds, etc., as Security 19 6. Agreement to Give Mortgage 19 7. General Assignment 20 8. Assignment in Trust 20 9. Lease Reserving Lien 21 [V] vi Table of Contents. CHAPTEE III. SUBJECTS OF MORTGAGE. FAOB Sec. 1. Chose in Action 25 a. In General 25 b. Liquor Tas Certificate 26 c. Bill of Lading or Warehouse Receipt 27 2. Property Not Owned by Mortgagor 27 a. In General 27 b. Property Fraudulently Obtained by Mortgagor 27 c. After-acquired Property 28 d. Property Not in Existence 29 e. Property Potentially in Existence 31 f. Crops 32 g. Operation as Equitable Lien 33 3. Growing Trees 36 4. Fixtures 36 5. Rolling Stock 37 6. Chattels Real 37 7. Future Estate 37 8. Stock of Goods 37 9. Vessels 38 CHAPTEE IV. FORM AND VALIDITY. Sbx3. 1. In General 39 2. Verbal Mortgage 40 3. Parties 41 a. In General 41 b. Infants 41 c. Partnership 41 d. Joint Owners of Property 42 ' e. Joint Mortgagees 42 4. Corporate Mortgages 42 a. Statute 42 b. Consents 44 e. Who May Attack for Failure to Comply with Statute 44 d. Corporate Mortgage Operating as Preference 4S e. Mortgage by Railroad 45 f. Filing of Corporate Mortgage 47 Table of Contents. yii PAGE Sec. 6. Debt 47 a. In General 47 b. Future Advances 47 c. Inaccurate Statement of Debt 49 d. Parol Evidence to Explain 49 6. Description of Property. : 49 a. In General 49 b. Indefinite 50 c. Schedule '. 52 d. Parol Evidence to Explain 52 7. Validity of Mortgage 53 a. In General 53 b. By What Law Determined 53 c. Usurious Mortgage 54 d. Mortgage to Compound Crime 55 e. Delivery of Mortgage 55 f. Alteration of Mortgage 56 g. Confusion of Goods 66 CHAPTEK V. FILING. Sec. 1. Statute 68 a. In General 68 b. Mortgages on Canal Boats 58 c. Purpose of Statute 59 d. Construction of Statute ; 60 2. Necessity of Filing 60 a. In General '. 60 b. Instruments Not Operating as Mortgage 60 c. Property Not " Goods and Chattels " 61 d. Mortgage of Real and Personal Property 62 e. Corporate Mortgages 62 3. Change of Possession in Lieu of Filing 63 a. In General 63 b. Constructive Possession 64 c. Symbolic Possession 65 d. Delivery of Part of Mortgaged Chattels 66 % Time of Filing 66 a. In General 66 b. Priority of Mortgages Filed at Same Time 69 viii Table of Contents. PAGE Sec. 6. Place of Filing 69 a. Statute 69 b. Construction of Statute 70 c. Effect of Erroneous Statement of Residence 71 d. Partnership Mortgage 72 e. Mortgage by Joint Stock Association 72 f . Mortgage of Vessel 72 g. Mortgage of Canal Boat 72 h. Mortgage of Liquor Tax Certificate 73 6. Filing of Portion of Contract 73 7. The Acts of Filing and Entry 74 a. Statute 74 b. Absence of Officer 75 c. Vacancy in Office 75 d. Omission of Officer 75 8. Payment of Fees 76 9. Removal of Mortgage 76 10. Effect of Failure to File 77 a. As to Third Parties 77 b. As Between the Parties 77 11. Who May Attack Mortgage for Failure 77 a. In General 77 b. Creditor in General 77 c. Creditor with Invalid Execution 81 d. Creditor with Knowledge of Mortgage 81 e. Purchaser or Mortgagee 81 f. Purchaser or Mortgagee from Third Party 82 g. Purchaser or Mortgagee with Notice of Unfiled Mortgage. 82 h. Purchaser or Mortgagee on Accotmt of Precedent Debt. . . 83 i. Purchaser at Judicial Sale 85 j. Assignee of Subsequent Mortgage 85 k. Subsequent Lienors 85 1. Assignee for Creditors 86 m. Receiver in Supplementary Proceedings 86 n. Receiver of Corporation 87 o. Trustee or Receiver in Bankruptcy 87 12. Effect of Transfer of Chattels 88 a. To Mortgagee 88 b. To Bona Fide Purchaser 89 c To Assignee for Creditors 90 Table or Contents. is CHAPTEE VI. REFILING. FAOK Sec. 1. Statute 91 a. In General 91 b. Object of Statute 92 0. Construction of Statute 93 2. Necessity 93 a. In General 93 b. Corporate Mortgages 93 c. Mortgages on Canal Boats 94 3. Time of Refiling 94 4. Statement of Interest of Mortgagee 95 5. By Whom Refiled 96 6. Eflfect of Failure 97 a. As to Creditors, Subsequent Purchasers or Mortgagees 97 b. As Between Parties 97 7. Who May Attack Mortgage for Failure 97 a. In General 97 b. Creditor 97 c. Purchaser or Mortgagee 99 d. Purchaser or Mortgagee Within Year 99 e. Purchaser or Mortgagee from Third Party 99 f. Purchaser or Mortgagee for Antecedent Debt 100 g. Purchaser or Mortgagee with Actual Notice, 100 h. Purchaser at Execution Sale 101 i. Tortfeasor Paying Judgment for Conversion 101 j. Receiver 102 k. Trustee in Bankruptcy 103 8. Change of Possession in Lieu of Refiling 103 9. New Mortgage in Lieu of Refiling IDS CHAPTEE VIL FRAUDULENT MORTGAGE. Sec. 1. Retention of Possession of Property by Mortgagor 106 2. Reservation by Mortgagor of Disposal of Property 108 a. In General 108 b. Sale for Benefit of Mortgagee 112 c. Effect of Failure to Deliver Proceeds to Mortgagee 113 X TAiSLE OF Coi^TENTS. PAGE Sec. 2. Reservation by Mortgagor of Disposal of Property — Con. d. Disposal of Stock of Goods and Substitution of Others 114 e. Sales Not Made Pursuant to Agreement 115 f. Sales on Credit 116 g. Question for Court or Jury 117 h. Effect of Transfer of Property to Mortgagee 117 3. Fraudulent Trust 118 4. Fraudulent in Fact 119 a,. In General 119 b. Between Husband and Wife 121 c. Excessive Statement of Indebtedness 121 d. Effect of Consideration 122 5. Mortgage Fraudulent in Part 123 6. Who May Attack Fraudulent Mortgage 123 a. Creditors 123 b. Executor, Administrator, Assignee or Trustee 124 CHAPTEE VIIL EIGHTS AND REMEDIES OF MORTGAGOR. Sec. 1. Transfer of Property 126 a. Before Default 126 b. After Default 127 c. Fraud in Not Disclosing Mortgage 127 d. Criminal Liability 127 2. Possession of Property 128 3. Action at Law 128 a. In General 128 b. Against Mortgagee 128 c. Damages 130 4. Equity of Redemption 130 5. Necessity of Tender in Action to Redeem 132 6. Scope of Relief in Action to Redeem 132 CHAPTEK IX. RIGHTS AND REMEDIES OF MORTGAGEE. Sec. 1. When Mortgagor Deemed in Default 135 a. In General I35 b. Mortgage to Indemnify Surety. 136 e. Failure to Pay Installment 138 Table of Contents. xi PAGE 1. When Mortgagor Deemed in Dafault — Con. d. When Process Against Mortgaged Property Is Permitted. . 137 e. When Property Is Removed Without Mortgagor's Consent. 138 f . Extension of Time 138 g. Waiver of Default 139 2. Possession of Property 139 a. Before Default 139 b. After Default 141 c. Waiver of Right 142 3. Rights of Mortgagee under Danger Clause 142 4. Retention of Property Without Foreclosure 144 a. In Greneral 144 b. Satisfaction of Debt Thereby 144 5. Action by Mortgagee for Possession 145 a. In Greneral 145 b. Parties 145 c. Demand 146 d. Judgment 146 6. Action to Recover Debt 146 a. In General 146 b. Action upon Mortgage to Recover Debt 147 i. Action for Conversion of Chattels 148 a. In General 148 b. Liability of Purchaser from Mortgagor 149 c. Liability of Agent of Mortgagor 149 d. Liability of Officer 150 e. Necessity of Demand 151 f. Damages 151 8. Foreclosure by Sale of Chattels 153 a. In General ■ 153 b. Requirement of Good Faith 154 c. Right of Mortgagee to Purchase 154 d. Excessive Sale 155 e. Surplus 155 f. Warranty of Title 156 9. Foreclosure by Action 156 a. In General 156 b. Parties 157 c. Defenses 158 d. Counterclaim > 158 10. Statutory Provisions for Foreclosure by Action 159' a. In General 159 b. Jurisdiction of Courts 1S9 c Warrant to Seize Chattel 159 xii Table of Contents. PAGE Skc. 10. Statutory Proyisions for Foreclosure by Action — Con. d. Judgment 159 e. Action in Inferior Court 160 f. Application of Foregoing Section 160 11. Action for Deficiency 160 12. Action in Equity to Determine Priority 161 13. Jurisdiction of Municipal Court of New York in Actions to Enforce Mortgage i 162 CHAPTEE X. RIGHTS AND LIABILITIES OF THIRD PARTIES. Sec. 1. Creditors 163 a. In General 163 b. Levy upon Mortgaged Property 163 c. Other Remedies of Creditors 167 2. Surety 168 3. Lienors 169 a. In General 169 b. Hotel, Inn, Boarding House Keeper, etc 169 c. Bailee of Animals 170 d. Bailee of Motor Vehicles 171 e. Warehouseman , ^ 172 4. Subsequent Mortgagee , 173 CHAPTEE XL ASSIGNMENT AND DISCHARGE OP MORTGAGE. Sec. I. Assignment 176 a. In General 176 b. Assignment of Debt 177 c. Subject to Equities 177 2. Discharge 178 a. By Payment 178 b. By Taking Other Security 180 c. By Transfer of Property to Mortgagee 181 d. By Assignment of Mortgage to Mortgagor 181 e. By Tender Before Default 182 f. By Tender After Default 182 Table of Contents. xiii PAGE Sec. 2. Discharge — Con. g. By Mortgagee's Eetention of Possession of Property 183 h. By Disposal of Property by Mortgagor 183 i. Release of Property from Lien of Mortgage 183 j. Discharge of Record 184 CHAPTEE XII. PROOF OF MORTGAGE 185 CHAPTEE XIII. MORTGAGE ON STOCK OF GOODS 186 CHAPTEE XIV. MORTGAGES OF VESSELS. Sec. 1. In General 189 2. Distinguished from Bottomry Bonds 190 3. Admiralty Jurisdiction of Mortgages on Vessels 192 4. Filing 192 a. Statute 192 b. Construction of Statute 194 c. Vessels to Which Statute Is Applicable 195 5. Priority of Mortgage 195 6. Liability for Supplies, etc 197 7. Right to Earnings of Vessel 198 CHAPTEE XV. MORTGAGES IN BANKRUPTCY PROCEEDINGS. Sec. 1. In General 200 2. Execution of Mortgage as an Act of Bankruptcy 201 3. Mortgage as Preference 202 4. Fraudulent Mortgage 206 0. Right of Trustee to Attack Mortgage 208 6. Sale of Mortgaged Property 209 ^xiv Tabi. 146 §§ 2919-2933 145 Municipal Court Act, §§ 57-91 145 § 73 162, 239 § 77 162 §§ 70-77 241 2 Rev. St. 136, § 5 107 Laws 1858, chap. 314 86, 87, 124 1897, ehap. 417, § 25 108 1902, chap. 608 : 172 1907, chap. 732 173 1911, chap. 571 108 TABLE OF CASES CITED TABLE OF CASES CITED [References are to pages.] Abrams v. Proctor, 148 N. Y. Supp. 213 109, 110 Abramson v. Potts, 69 Misc. 64, 125 N. Y. Supp. 1012 137, 140 Ackerman v. Rubens, 167 N. Y. 405 ' 237 Ackley v. Finch, 7 Cow. 290 4, 40, 55 Adler v. Weis & Fisher Co., 218 N. Y. — 247, 248 Ainsworth v. Rhines, 34 Misc. 372, 69 N. Y. Supp. 876 239 Albany City Nat. Bank v. Hudson River Brick Mfg. Co., 79 Hun 387, 29 N. Y. Supp. 793 157 Albert v. Steiner Mfg. Co., 42 Misc. 522, 86 N. Y. Supp. 162 218 Aldrich v. iEtna Co., 8 Wall. (U. S.) 491 194 Alexander v. Kellner, 131 App. Div. 809, 116 N. Y. Supp. 98 216, 246 Allen «. Becket, 84 N. Y. Supp. 1007 172 Allen V. Heinse, 20 N. Y. Supp. 38 82 Allen V. Judson, 71 N. Y. 77 146 Allen V. Vose, 34 Hun 57 143 American Box Machine Co. v. Zentgraf, 45 App. Div. 522, 61 N. Y. Supp. 417 230, 242, 243 American Trust Co. v. W. & A. Fletcher Co., 173 Fed. 471, 97 C. C. A. 477 192, 196 Anchor Brewing Co. v. Burns, 32 App. Div. 272, 52 N. Y. Supp. 1006 26, 30, 34 Anderson v. Hunn, 5 Hun 79 124, 174 Andrae Co., In re., 9 Am. B. R. 135v 117 Fed. 561 .200, 208 Andrew v. Newcomb, 32 N. Y. 417 23, 33 Andrews v. Powers, 66 App. Div. 216, 72 N. Y. Supp. 597 219 Archer v. Cole, 22 How. Pr. 411 152 1902 Attorney-General's Rep. 162 94 1902 Attorney-General's Rep. 207 96 Austin V. Dye, 46 N. Y. 500 217 Avalon, The, 169 Fed. 696 194, 196 Avery v. Chapman, 127 N. Y. Supp. 721 241, 242 [xxiii] xxiv Table of Cases Cited. [References are to pages.] B Bailey v. Burton, 8 Wend. 339 122, 124, 165 Baillargeon v. Dumoulin, 148 N. Y. Supp. 443 115 Baillargeon v. Dumoulin, 165 App. Div. 730, 151 N. Y. Supp. 112 109 Bainbridge v. Richmond, 17 Hun 391 42, 108, 109, 117, 168 Baldinger v. Levine, 83 App. Div. 130, 82 N. Y. Supp. 483. .' 223 Baldwin v. The Bradish Johnson, 3 Woods 582 195 Ball V. Slafter, 26 Hun 353 109, 110, 115, 116, 125 Ballard v. Burgett, 40 N. Y. 314 217 Ballon V. Cunningham, 60 Barb. 425 153, 154 Baltes V. Eipp, 1 Abb. Deo. 78, 3 Keyes 210 135 Balz V. Shaw, 13 Mise. 181, 34 N. Y. Supp. 5 77, 82 Bame v. Drew^ 4 Den. 287 '■ 121 Banfield v. Haeger, 13 J. & S. 428 172 Bank of Lansingburgh v. Crary, 1 Barb. 542 36, 165 Bank of Rochester v. Jones, 4 N. Y. 497 3, 27, 40, 66 Bardwell v. Roberts, 66 Barb. 433 17, 40 Barker v. Doty, 4 Alb. L. J. 63 81, 85 Barrett v. Mack, 64 Misc. 333, 118 N. Y. Supp. 538 88 Barrett Mfg. Co. v. Van Rouk, 212 N. Y. 90 4 Barrow v. Paxton, 5 Johns. 258 16 Barry v. Colville, 129 N. Y. 302 10 Baskins v. Shannon, 3 N. Y. 310 81, 82 Bauman v. Kuhn, 57 Misc. 618, 108 N. Y. Supp. 773 ; 157, 172 Baumann v. Cornez, 15 Daly 450, 8 N. Y. Supp. 480 135, 137, 138, 139 Baumann v. Jefferson, 4 Mise. 147, 23 N. Y. Supp. 685 148, 149, 172 Baumann v. Libetta, 3 Misc. 518, 23 N. Y. Supp. 1 70, 71 Baumann v. Post, 16 Daly 385, 26 Abb. N. C. 134, 12 N. Y. Supp. 213. .59, 172 Baumgartner v. The W. B. Cole, 49 Fed. 587 194 Baxter v. Gilbert, 12 Abb. Pr. 97 61, 176, 177, 181 Baxter v. Wallace, 1 Daly 303 197, 198 Beadleston & Woerz v. Morton, 16 Misc. 72, 37 N. Y. Supp. 666 145 Bean v. Edge, 84 N. Y. 510 13 Beebe v. Richmond L. H. & P. Co., 13 Misc. 737, 35 N. Y. Supp. 1 28, 30, 35 Beekman v. Bond, 19 Wend. 444 , 107 Beers v. Waterbury, 8 Bosw. 396 92a, 96, 100, 101, 158 Bell V. New York Safety Steam Power Co., 183 Fed. 274 20, 87 Benjamin v. Elmira J. & C. R. Co., 54 N. Y. 675 82 Bennett v. Earll, 21 Wend. 117 107 Berner v. Kaye, 14 Mise. 1, 35 N. Y. Supp. 181 229 Bernheimer v. Blumenthal, 42 App. Div. 193, 58 N. Y. Supp. 1003 147 Bernheimer & Schwartz Pilsener Brewing Co. v. Koehler Co., 42 Misc. 377, 86 K. Y. Supp. 716 174, 175 Beskin v. Feigenspan, 32 App. Div. 29, 52 N. Y. Supp. 750 65, 99 Table of Cases Cited. xxv [References are to pages.] Best V. Staple, 61 N. Y. 71 81, 85, 195 Betsinger v. Schuyler, 46 Hun 349 22, 31 Biehler v. Irwin, 84 N. Y. Supp. 574 148, 151, 152 Bigelow V. Goble, 9 App. Div. 391, 41 N. Y. Supp. 290 124, 151, 153 Billinss v. Russell, 101 N. Y. 226 122 Birbeek v. Tucker, 2 Hall 121 197, 198 Tishop V. Cook, 13 Barb. 320 75, 76, 121 Eissell V. Hopkins, 3 Cow. 166 8 rissell V. Pearce, 28 N. Y. 252 171, 185 Bissell V. Pearce, 21 How. Pr. ISO 97, 180 Blake v. Corbett, 120 N. Y. 327 7, 47, 146 Blake v. Crowley, 12 St. Eep. 650, 28 Week. Dig. 139 157 Blanchard v. The Martha Washington, 1 Cliff. 463, Fed. Cas. No. 1,513. . 194 Bleakley v. Sullivan, 140 N. Y. 175 3 Blennerhasset v. Sherman, 105 U. S. ICO' 79, 120, 122 Blodgett V. Wadhams, Hill & D. Supp. 65 55, 178 Bloomingdale v. Braun, 80 Misc. 527, 141 N. Y. Supp. 590 241 Bloomingdale v. Gaudio, 85 Misc. 389, 147 N. Y. Supp. 432 145 Blumberg v. Marks^ 87 N. Y. Supp. 512 174 Blumenthal v. Lynch, 25 Abb. N. C. 85, 11 N. Y. Supp. 382 88, 89 Bogart V. The John Jay, 17 How. (U. S.) 399 192 Bohde V. Farley, 19 J. & S. 42 218 Booher v. Stewart, 75 Hun 214, 27 N. Y. Supp. 114 23, 33 Boon V. Moss, 70 N. Y. 465. 12, 217 Booth V. Kehoe, 71 N. Y. 341 26, 61 Boshart v. Kirley, 34 Misc. 241, 69 N. Y. Supp. 623 109 Bowdish V. Page, 153 N. Y. 104 88, 90 Bo-*dish V. Page, 81 Hun 170, 30 N. Y. Supp. 691 86, 98 Bowen v. Dawley, 116 App. Div. 568, 101 N. Y. Supp. 878. . . .213, 228, 229, 244 Brackett i;. Harvey, 91 N. Y. 214 109, 110, 112, 114, 115, 116 Bragelman v. Dane, 69 N. Y. 69 4, 5, l9, 131, 133, 141 Braynard v. Hoppock, 32 N. Y. 572 190, 191 Breakstone v. Buffalo Foundry & Machine Co., 167 App. Div. 62, 152 N. Y. Supp. 394 224, 245, 247 Breese v. Bange, 2 E. D. Smith 474 1, 6, 16 Breeze v. Bayne^ 202 N. Y. 206 ■ 103 Brewer v. Ford, 54 Hun 116, 7 N. Y. Supp. 244 241, 242 Brewer v. Ford, 59 Hun 17, 12 N. Y. Supp. 619 242 Brewster v. Baker, 20 Barb. 364 12 Brig Wexford, The, 7 Fed. 674 198 Briggs V. Austin, 8 N. Y. Supp. 786 50, 79 Briggs V. Gelm, 122 App. Div. 102, 106 N. Y. Supp. 693 108 Briggs V. Oliver, 68 N. Y. 336 82, 147, 153, 156 Broadhead v. Smith, 55 Hun 499, 8 N. Y. Supp. 760 52 Brockman v. Buell, 16 Daly 90, 9 N. Y. Supp. 895 136, 148 Brown v. Bement, 8 Johns. 96 16, 18, 183 Brown v. Cook, 3 E. D. Smith 123 136, 146, 151 Brown v. Guthrie, 110 N. Y. 435 20, 47, 48 xxvi Table op Cases Cited. [References are to pages.] Brown v. Kiefer, 71 N. Y. 610 48 Brown v. Piatt, 8 Bosw. 324 56, 117 Brown v. Rich, 40 Barb. 28 182 Brownell v. Hawkins, 4 Barb. 491 2, 16, 18 Brueker v. CarroU, 86 Misc. 412, 149 N. Y. Supp. 280 247 Brunnemer i;. Cook & Bernheimer, 180 N. Y. 188 86, 87 Brunswick-Balke-Collender Co. v. Stephenson, 4 N. Y. Supp. 123.. 27, 28, 30 Brush V. Evans, 21 J. & S. 523 129', 132 Bryan v. Smith, 13 Daly 331 138, 164, 165, 166 Bryant v. Woodruff, 5 Leg. Obs. 139 77, 141 Budweiser Brewing Co. v. Capparelli, 16 Misc. 502, 38 N. Y. Supp. 972.. 156 Bueb V. Geraty, 28 Misc. 134, 59 N. Y. Supp. 249' 72, 84 Bueb 17. Geraty, 36 Misc. 161, 72 N. Y. Supp. 1071 84 'Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 17 N. Y. 401 4, 155 Bullard v. Kenyon, 24 N. Y. Supp. 374 78 Bunacleugh v. Poolman, 3 Daly 236 18, 131, 144, 153 Burdick v. McVanner, 2 Den. 170 4, 139, 144 Burghen v. Purdy, 27 App. Div. 460, 50 N. Y. Supp. 546 55 Burns v. Winchell, 44 Hun 261, 7 St. Eep. 640 128 Burritt v. Sheffer, 13 N. Y. Supp. 849, 37 St. Eep. 591 48, 179 Buskirk v. Cleveland, 41 Barb. 610 40, 52 Butler V, Miller, 1 N. Y. 496 2, 150, 180 Butler V. People's Furniture Co., 124 N. Y. Supp. 645 247 Butler «. Van Wyck, 1 Hill 438 107 Button V. Rathbone, Sard & Co., 126 N. Y. 187 65, 80^ 83, 84 Cable V. White, 26 Wend. 511 190 Cambridge Soc. v. Elliott, 50 Misc. 159, 98 N. Y. Supp. 232 240 Camp V. Camp, 2 Hill 628 64, 65 Campbell v. Birch, 60 N. Y. 214 176, 177, 183 Campbell v. Parker, 9 Bosw. 322 ; 16, 19 Campbell Printing Press, etc., Co. v. Damon, 48 Hun 509, 1 N. Y. Supp. 185 78, 79 Campbell Printing Press, etc., Co. v- Oltrogge, 13 Daly 247 222, 223 Campbell Printing Press Co. v. Walker, 43 Hun 449 234 Canada, The, 7 Sawy. 173, 7 Fed. 248 196, 197 Canton, etc.. Dental Co. v. Webb, 16 N. Y. Supp. 932 16, 230, 231 Caring v. Richmond, 22 Hun 369 112 Caring v. Richmond, 28 Hun 25 5fi Carpenter v. Blate, 1 E. D. Smith 491 48 Carpenter v. Simmons, 1 Rob. 360, 28 How. Pr. 121 15.1 Carpenter v. Town, Hill & D. Supp. 72 138 Table of Cases Cited. xxvii [References are to pages.] Cartier v. Pabst Brewing Co., 112 App. Div. 419, 98 N. Y. Supp. 516 4, 132, 133, 168 Case V. Boughton, 11 Wend. 106 144, 161 Casper v. Payne, 11 App. Div. 785, 97 N. Y. Supp. 863 241 Casserly v. Witherbee, 119 N. Y. 622 4, 5, 129, 131, 132, 133, 154 Castleman v. Pryor, 55 App. Div. 515, 67 N. Y. Supp. 229 79, 80, 88 Cavan v. Kelly, 3 Albi L. J. 373 55 Ceas V. Bramley, 18 Hun 187 6, 17, 40 Central Trust Co. v. West India Imp. Co., 169 N. Y. 314 31 Central Union Gas Co. v. Browning, 210 N. Y. 10 230 Chadwick v. Lamb, 29 Barb. 518 140, 142, 148, 152 Chamberlain v. Martin, 43 Barb. 607 153, 154 Champagn v. Powell Medicine Co., 48 App. Div. 314, 63 N. Y. Supp. 26 143 Champlin v. Butler, 18 Johns. 169 197, 198 Champlin v. Johnson, 39 Barb. 606 164, 165 Chandler v. Bunn, Hill & D. Supp. 167 41, 70, 71 Chandless v. Globe Storage and Carpet Cleaning Co., 49 Misc. 562, 98 N. Y. Supp. 511 177 Chapin v. Shafer, 49 N. Y. 407 41 Chapman v. Jenkins, 31 Barb. 164 136, 179, 180 Charter v. Stevens, 3 Den. 33 130, 139, 153, 155, 157, 183 Chatham Nat. Bank v. O'Brien, 6 Hun 231 117 Chemung Canal Bank v. Payne, 164 N. Y. 252 62, 77 Chester v. Jumel, 5 N. Y. Supp. 809 61 Church V. Lapsham, 94 App. Div. 550, 88 N. Y. Supp. 222 27 City Bank of Rochester v. Westbury, 16 Hun 458 116 aark V. Gilbert, 14 Week. Dig. 241 78 Clark V. Griffith, 24 N. Y. 595 130 Clark V. Henry, 2 Cow. 324 8, 11, 15, 26, 131 Clark V. McDuffie, 21 N. Y. Supp. 174 68, 85, 152, 165 Clement v. Congress Hall, 72 Misc. 519, 132 N. Y. Supp. 16 44, 51, 63, 85 Clifton, The, 143 Fed. 460 191, 192 Close V. Brennan, 12 Week. Dig. 347 146 Coats V. Donnell, 94 N. Y. 168 45 Coder v. Arts, 18 Am. B. E. 513, 152 Fed. 943 204, 207, 209 Coder v. McPherson, 18 Am. B. E. 523, 152 Fed. 951 204, 205 Cody V. First Nat. Bank, 63 App. Div. 199, 71 N. Y. Supp. 277 129 Coe V. Cassidy, 72 N. Y. 133 10, 144, 153, 154 Cohn V. Ammidown, 120 N. Y. 398 156 Coiro V. Baron, 158 App. Div. 591, 143 N. Y. Supp. 853 159 Coke Littleton, 205-a 1 Cole V. Mann, 62 N. Y. 1 213, 218, 238 Cole V. White, 26 Wend. 511 191 Collins V. Brusli, 9 Wend. 198 107 Columbia Bank v. American Surety Co., 84 App. Div. 487, 82 N. Y. Supp. 1054 173 xxviii Table of Cases Cited. [References are to pages.] Columbia Fireproof Door and Trim. Co., 21 Am. B. R. 714, 168 Fed. 159. .. . 209 Comley v. Dazian, 114 N. Y. 161 3 Commercial Bank of Eochester v. Davy, 81 Hun 200, 30 N. Y. Supp. 718. . 59, 97, 103, 179 Conderman v. Smithy 41 Barb. 404 28, 31 Conkey v. Hart, 14 N. Y. 22 138 Conkling v. Shelley, 28 N. Y. 360 51, 52, 112, 114 Consumers' Brewing Co. of Brooklyn v. Braun, 132 N. Y. Supp. 87 157, 161 Conveyor, The, 147 Fed. 586 196 Cook V. Bennett, 60 Hun 8, 14 N. Y. Supp. 683 115 Cooper u. Douglas, 44 Barb. 409 31, 32, 35 Corbett v. Gushing, 15 Daly 170, 4 N. Y. Supp. 616 86, 170 Corning v. Ackley, 4 N. Y. Supp. 255, 21 St. Rep. 703 171 Corrigan v. Sammis, 65 Misc. 473, 120 N. Y. Supp. 69 137, 140, 166 Cortelyou v. Lansing, 2 Cai. Cas. 200 16, 19 Corwin V. Wesley, 2 J. & S. 109 176 Costello V. Herbst, 18 Misc. 176, 41 N. Y. Supp. 574 214 Craft V. Brandow, 61 App. Div. 247, 70 N. Y. Supp. 364 41, 164, 167 Craig V. Tappin, 2 Sandf. Ch. 78 48 Crandall v. Brown, 18 Hun 461 27 Cressey v. Sabre, 17 Hun 120 , 33 Crisfield v. Bogardus, 18 Abb. N. C. 334 77, 86 Crocker-Wheeler Co. v. Genesee Recreation Co., 160 App. Div. 373, 145 N. Y. Supp. 477 219, 222, 228 ' Crocker-Wheeler Co. v. Genesee Recreation Co., 140 App. Div. 726, 125 N. Y. Supp. 721 224, 231, 232 Crocker- Wheeler Co. v. Genesee Recreation Co., 134 N. Y. Supp. 61 230 Crosby v. The Oriental, Fed. Cas. No. 3,424-a 195 Crouse v. Johnson, 65 Hun 337, 200 N. Y. Supp. 177 75 Crouse v. Schoolcraft, 51 App. Div. 160, 64 N. Y. Supp. 640 67, 78, 81 Crowe V. Liquid Carbonic Co., 208 N. Y. 396 245, 248 Crutts V. Daly, 84 Misc. 192, 145 N. Y. Supp. 850 143, 164, 165 Crmnp v. Wisner, 163 App. Div. 471, 148 N. Y. Supp. 401 401 Cullin V. Ryder, 44 Misc. 485, 89 N. Y. Supp. 465 79, 98, 100 Culver V. Sisson, 3 N. Y. 264 148 Cunningham v. Hedge, 12 App. Div. 212, 42 N. Y. Supp. 549 215 Curtis V. Leavitt, 15 N. Y. 9 107 Cutler V. James Gould Co., 43 Hun 516 132, 182 Cutler Mail Chute Co. v. Crawford, 167 App. Div. 246, 152 N. Y. Supp. 750. .' 223 Cutting, In re, 145 Fed. 388 97, 98 D Dane v. Mallory, 16 Barb. 46 i 4, 5, 139 153 Darling v. Hunt, 46 App. Div. 631, 61 N. Y. Supp. 278 13oi 142' 143 Darrow v. Wendelstadt, 43 App. Div. 426, 60 N. Y. Supp. 174 4, 129, 183 Davenport v. McChesney, 86 N. Y. 242 155^156 David Brewing Co. v. Eastern Brewing Co., 22 App. Div. 523, 48 N. Y.' Supp. 89 101 Table of Cases Cited. xxix [References are to pages.] David Stevenson Brewing Co. v. Iba, 155 N. Y. 224 82 177 David Stevenson Brewing Co. v. Iba, 12 Misc. 329, 33 N. Y. Supp. 642 85 Davidson v. Baldwin, 79 Fed. 95, 24 C. C. A. 453, 47 U. S. App. 589 197, 198 Davidson v. Osborne, 75 Misc. 391, 135 N. Y. Supp. 675 .32, 67, 81 Davidson v. Osborne, 151 App. Div. 747, 136 N. Y. Supp. 247 80 Davis V. Bliss, 187 N. Y. 77 151, 219, 238 Dearing v. McKinnon Dash k Hdwe. Co., 165 N. Y. 78 54 Deeley v. Dwiglit, 132 N. Y. 5.9 30, 34 Deeley v. Dwight, 16 Daly 300, 11 N. Y. Supp. 60. 84 Deland v. Miller & Cheney Bank, 26 Am. B. E. 744 204, 208 Delano v. Wright, 1 Rob. 298 197, 198 Delany v. Valentine, 154 N. Y. 692 20, 21, 118, 119 Delaware v. Ensign, 21 Barb. 85 118 DeLuca v. Archer Mfg. Co., 49 Misc. 645, 97 N. Y. Supp. 1026 129, 132 Denier v. Bonewur, 134 App. Div. 577, 119 N. Y. Supp. 313 28, 30, 34 De Smet, The, 10 Fed. 483 195 Despard v. Walbridge, 15 N. Y. 374 10, 26 Dethoflf V. Gattie, 103 N. Y. 589 148 Detroit Trust Co. v. Pontiac Savings Bank, 27 Am. B. R. 821 20O Dickinson V. Oliver, 195 N. Y. 238 8, 14 Dickinson v. Oliver, 96 App. Div. 65, 89 N. Y. Supp. 52 8, 14 Dikeman v. Puckhafer, 1 Abb. Pr. (N. S.) 32, 1 Daly 48& 76, 135 Dillingham v. Bolt, 37 N. Y. 198 59, 82, 99 Dinniny v. Gavin, 4 App. Div. 298, 39 N. Y. Supp. 485 148 Diwer v. McLaughlin, 2 Wend. 596 49, 106, 122 Dix V. Van Wyck, 2 Hill 522 55 Doane v. Eddy, 16 Wend. 523 107 Dodge V. Norlin, 13 Am. B. R. 177, 133 Fed. 363 200 Dodge V. Potter, 18 Barb. 193 49, 52, 53, 75, 76 Doig V. Haverly, 92 Hun 176, 37 N. Y. Supp. 455 83 Dolson V. Sexton, 11 Hun 565 108, 112 Domestic Sewing Machine Co. v. Barry, 21 N. Y. Supp. 970, 51 St. Rep. 219 : 217 Donnelly v. McArdle, 86 App. Div. 33, 83 N. Y. Supp. 193 10, 11 Donohue V. Jackson, 15 N. Y. Supp. 458 88 Doods V. Johnson, 3 T. & C. 215 123 Doolittle V. Naylor, 2 Bosw. 206 178 Dorthy v. Servis, 46 Hun 628, 13 St. Rep. 1 86, 90 Dougherty v. Neville, 108 App. Div. 89, 95 N. Y. Supp. 806 235, 241 Dudley v. Hawley, 40 Barb. 397 150 Duffus V. Bangs, 122 N. Y. 423 22 Duffus V. Bangs, 43 Hun 52 36 Duffus v. Howard Furnace Co., 8 App. Div. 567, 40 N. Y. Supp. 925 .. . 230 Ihmham v. Silberstein, 32 Misc. 642, 66 N. Y. Supp. 475 81, 82 XXX Table of Cases Cited. [References are to pages.] Dunham v. Whitehead, 21 N. Y. 131 20, 21, 118 Dunning v. Stearns, 9 Barb. 630 31, 50, 51, 52, 56 Duntz V. Granger Brewing Co., 41 Mise. 177, 83 N. Y. Supp. 957 219, 223 Dutcher v. Swartwood, 15 Hun 31 118 E Earle V. Gorham Mfg. Co., 2 App. Div. 460, 37 N. Y. Supp. 1037 132, 137, 139, 183 Earle v. Eobinson, 91 Hun 363, 36 N. Y. Supp. 178 212 Earle v. Robinson, 12 Misc. 536, 33 N. Y. Supp. 606 241 East New York, etc., Woodworking Co. v. Halpern, 140 App. Div. 201, 125 N. Y. Supp. Ill ... , 230 Eastern Brewing Co. v. Feist, 21 Misc. 681, 48 N. Y. Supp. 29 83 Ebling V. Husson, 22 J. & S; 377 79 E. DeBraekeleer & Co. v. Schwabeland, 86 Hun 143, 33 N. Y. Supp. 212. . 77, 81 Edgell V. Hart, 9 N. Y. 213 30, 52, 108, 115, 117 Edgerly v. Bush, 81 N. Y. 199 54 Edmead v. Anderson, 118 App. Div. 16, 103 N. Y. Supp. 369 241 Edmiston v. Brucker, 40 Hun 256 154 Edward Thompson v. Vacheron, 69 Mise. 83, 125 N. Y. Supp. 939 239 Ehrgott V. Forgotston, 17 N. Y. Supp. 381 55 Eisler v. Union Transfer and Storage Co., 16 Daly 456, 12 N. Y. Supp. 732 145, 172 Elder v. Rouse, 15 Wend. 218 148 Ella B., The, 26 Fed. Ill 195 Ellsworth V. Phelps, 30 Hun 646 114 Ely V. Carnley, 19 N. Y. 496 93, 95 Emerson v. Knapp, 129 App. Div. 827, 114 N. Y. Supp. 794 146, 167 Emily Souder, The, 17 Wall (U. S.) 666 196 Empire St. Type Founding Co. v. Grant, 114 N. Y. 40 213, 245 English V. Hanford, 75 Hun 428, 27 N. Y. Supp. 672 244 Equitable Gen. Prov. Co. v. Potter, 22 Misc. 124, 48 N. Y. Supp. 647 . . 239, 242 Equitable General Providing Co. v. Stein, 16 Misc. 582, 38 N. Y. Supp. 774 215 Equitable Providing Co. v. Eisentrager, 31 Misc. 707, 65 N. Y. Supp. 296 240 Equitable Providing Co. v. Eisentrager, 34 Misc. 179, 68 N. Y. Supp. 866 239, 240 Etheridge v. Sperry, 139 U. S. 266 20O Excelsior Brewing Co. v. Smith, 125 App. Div. 668, 110 N. Y. Supp. 8.. 37 Table of Cases Cited. xxxi [References are to pages.] Fairbanks v. Bloomfield, 5 Duer 434 48, 107, 119, 141, 142, 150, 165, 166, 195 Fairbanks v. Nichols, 135 App. Div. 298, 119 N. Y. Supp. 752 245, 247 Farmers' Bank of Washington County v. Cowan, 2 Abb. Dec. 88, 2 Keyes 217 4, 127, 156, 164 Farmers' L. & T. Oo. v. Baker, 20 Misc. 387, 46 N. Y. Supp. 266 87, 102, 104 Farmers* L. & T. Co. V. Hendrickson, 25 Barb. 484 37, 81 Farmers' L. & T. Co. v. Long Beach Improvement Co., 27 Hun 89 27, 30, 31, 35 Farmers and Mechanics' Nat. Bank of Buffalo v. Lang, 87 N. Y. 209 27 Farrell v. Hildreth, 38 Barb. 178 140, 142, 15*, 166 Favorite, The, 3 Sawy. 405, Fed. Cas. No. 4,699' 196 Fellows i;. Van Hysing, 23 How. Pr. 230 55, 185 Fennikoh v. Gunn, 59 App. Div. 132, 69 N. Y. Supp. 12 12, 213, 231 Ferguson V. Lee, 9 Wend. 258 163 Ferguson v. Union Furnace Co., 9 Wend. 345 18, 40 Ferguson Contracting Co., In re, 183 Fed. 830 228 Ferraro v. Stramello, 134 N. Y. Supp. 535 50 Fidelity Loan Assoc, v. Connolly, 92 N. Y. Supp. 252 4, 5, 141, 145, 162 Fidelity IVust and Guaranty Co. v. Bell, 63 App. Div. 523, 71 N. Y. Supp. 651 118 Field V. Ingraham, 15 Misc. 529, 37 N. Y. Supp. 1135 67, 79 Filkins v. Cruice, 21 Week. Dig. 292 136, 143 First Nat. Bank V. Kelly, 57 N. Y. 34 27, 66 First Nat. Bank of Canton, In re, 14 Am. B. R. 180, 135 Fed. 62 200 Fischman v. Levin, 83 Misc. 107, 144 N. Y. Supp. 674 130 Fishel V. Hamilton Storage Warehouse Co., 42 Misc. 532, 86 N. Y. Supp. 196 130, 157, 164 Fisher v. Stout, 74 App. Div. 97, 77 N. Y. Supp. 945 8 Fiske V. Peebles, 13 St. Rep. 743 223 Fitch V. Humphrey, 1 Den. 163 96 Fitzgerald V. Atlanta Home Ins. Co., 61 App. Div. 350, 70 N. Y. Supp. 552 39, 40, 62 Fitzgerald V. Fuller, 19 Hun 180 218 Fitzgibbons Boiler Co. v. Manhasset Realty Co., 125 App. Div. 764, 110 N. Y. Supp. 225 219 Flannell v. O'Brien, 43 App. Div. 534, 60 N. Y. Supp. 101 47 Fleetham v. Reddick, 82 Hun 390, 31 N. Y. Supp. 342 30, 32, 33, " 34 Flint HjU Stone and Construction Co., In re, 18 Am. B. R. 81, 149 Fed. 1007 .201, 202 Folger V. Weber, 16 Hun 512 194 Ford V. Cobb, 20 N. Y. 344 36 xxxii Table of Cases Cited. [References are to pages.] Ford ». Ransom, 8 Abb. Pr. (N. S.) 416 141 Ford V. \Xmiama, 13 N. Y. 577 108^ 110 Ford V. Williams, 24 N. Y. 359 112, 117 Fowler v. Haynes, 14 Week. Dig. 376 165 Fox V. Burns, 12 Barb. 677 100, 131 Frank v. Batten, 49 Hun 91, 1 N. Y. Supp. 70a. .213, 216, 217, 218, 231, 233 Fraser v. Gilbert, 11 Hun 634 78 French v. Powers, 120 N. Y. 128 154 French 17. Powers, 18 Week. Dig. 86 154, 155 French v. Row, 77 Hun 380. 215 Friedman v. Phillips, 84 App. Div. 179, 82 N. Y. Supp. 96 213 Frisbey v. Thayer, 25 Wend. 396 107 Frost V. Mott, 34 N. Y. 253 59, 107, 124 Frost V. Warren, 42 N. Y. 204 49; 115, 117, 122 Fuller V. Acker, 1 Hill 473 135, 139, 141, 145 Pulton, In re, 153 Fed. 664 37 Furniture Co., In re, 15 Am, B. R. 119" 208 G Galen v. Brown, 22 N. Y. 37 52, 53, 164, 166 Gandy v. ColUns, 214 N. Y. 293 18, 77 Gardner v. Adams^ 12 Wend. 297 107 Gardner v. McBwan, 19 N. Y. 123 28, 29, 115, 117 Garlick v. James, 12 Johns. 146 19 Garrison v. Quick, 38 App. Div. 93, 57 N. Y. Supp. 895 173 Gaul V. Gouldburg Furniture & Carpet Co., 85 Misc. 426, 147 N. Y. Supp. 616 12, 144 General Electric Co. v. Wightman, 3 App. Div. 118, 39 N. Y. Supp. 420 26 Gerber v. Mandel, 56 N. Y. Supp. 1030 223, 228 German-American Bank of Towanda v. P. W. Scriber Lumber Co., 81 Hun 140, 30 N. Y. Supp. 740 145, 147 Gerry, In re, 7 Am. B. R. 459, 112 Fed. 957 210 Gerstman, In re, 157 Fed. 549 79 Gibson v. Fferris, 30 St. Rep. 663, 9 N. Y. Supp. 525 99 Gildersleeve v. Landon, 73 N. Y. 609 82, 100 Githens, etc., Co. v. Shiffler Bros., 7 Am. B. R. 453, 112 Fed. 505 202 Glover v. Ehrlich, 62 Misc. 245, 114 N. Y. Supp. 992 45, 115 Godard v. Gould, 14 Barb. 662 219 Goldsmith v. Levin, 9 St. Rep. 313 109 Gomez v. Kampling, 4 Daly 77 14, 15 Goodhue v. Berrien, 2 Sandf. Ch. 630 62, 123 Goodwin v. Bayerle, 18 Misc. 62, 41 N. Y. Supp. 20 83 Goodwin v. Kelly, 42 Barb. 194 9, 63 Goodyear v. Brooks, 4 Rob. 682, 2 Abb. Pr. (N. S.) 296 157 Gore V. Glover, 49 Misc. 473, 97 N. Y. Supp. 969 3, 7, 8 Table of Cases Cited. xxxiii [References are to pages.] Gormully & Jeffrey Mfg. Co. v. Catharine, 25 Misc. 338, 55 N. Y. Supp. 475 242 Gould V. Browne, 4 Leg. Obs. 423 70, 93 Gould V. Marsh, 1 Hun 566, 4 T. & C. 128 178 Goulet v. Asseler, 22 N. Y. 225 ." 150, 165 Gove p. Morton Trust Co., 96 App. Div. 177, 89 N. Y. Supp. 247 87 Grant v. Griffith, 39 App. Div. 107, 56 N. Y. Supp. 791 223, 224 Grant v. Skinner, 21 Barb. 581 13 Grant v. Smith, 88 Hun 32, 34 N. Y. Supp. 538 136, 137, 138 Graser v. Stellwagen, 25 N. Y. 315 41 Grasmuck v. Baur, 12 Daly 180 79 Graves Elevator Co. V. Callanan, 11 App. Div. 301, 42 N. Y. Supp. 930. . 30, 31, 218, 222, 223, 224 Gray v. Booth, 64 App. Div. 231, 71 N. Y. Supp. 1015 240 Greacen v. Poehlman, 191 N. Y. 493 214 Green v. Van Buskirk, 74 U. S. 139 54 Gregg V. Witteman, 12 Misc. 90, 32 N. Y. Supp. 1131 149, 165 Gregory v. Thomas, 20 Wend. 17 59, 82, 83, lOO, 180 Griffin v. Armsted, 162 App. Div. 936, 147 N. Y. Supp. 1114 157 Griswold v. Sheldon, 4 N. Y. 581 108 Groat V. Rees, 20 Barb. 26 107 Grok's Sons v. Feldman, 40 Misc. 303, 81 N. Y. Supp. 970 144 Guaranty Trust Co. v. Troy Steel Co., 33 Misc. 484, 68 N. Y. Supp. 915. . . 62 Guiding Star, The, 9 Fed. 521 192, 196 Guilford v. Mills, 18 N. Y. Supp. 275 167 H HafiFen Brewing Co., 78 Misc. 366, 138 N. Y. Supp. 426 52 Hakes v. Thornton, 59 App. Div. 464, 69 N. Y. Supp. 234 165 Hale V. Omaha Nat. Bank, 49 N. Y. 626 34 Hale V. Omaha Nat. Bank, 64 N. Y. 550 35 Hale V. Omaha Nat. Bank, 7 J. & S. 207 150, 165, 174 Hale V. Sweet, 40 N. Y. 97 80 Hall V. Ditson, 5 Abb. (N. C.) 198 26, 131, 132, 154 Hall V. Sampson, 35 N. Y. 274 140, 150, 166 Hall V. Tuttle, 8 Wend. 375 107 Halstead v. Swartz, 1 T. & C. 559, 46 How. Pr. 289 4, 131, 132 137, 154, 183 Hamill v. Gillespie, 48 N. Y. 556 147, 165 Hammond, In re, 26 Am. B. E. 336 209 Hanford v. Artcher, 4 Hill 271 107 Hangen v. Hachemeister, 114 N. Y. 566 108, 109, 110, 115, 125 Hanrahan v. Roche, 22 Alb. L. J. 134 42 Hanson V. Kassmayer, 91 N. Y. Supp. 755 157 Harder v. Plass, 57 Hun 540, 11 N. Y. Supp. 226 32, 83 xxxiv Table of Cases Cited. [References are to pages.] Hardin v. Dolge, 46 App. Div. 416, 61 N. Y. Supp. 753 62, 77 Hardt v. Deutsch, 30 App. Div. 589, 52 N. Y. Supp. 335... Ill, 117, 156, 167 Hare v. Follett, 17 N. Y. Supp. 559 22, 23 Harris v. Automatic Press Co. v. Demarest Pattern Co., 47 Misc. 624, 94 N. Y. Supp. 462 157 Harris v. Batjer, 26 Misc. 702, 57 N. Y. Supp. 90 86 Harris v. Gunn, 37 Misc. 796, 77 N. Y. Supp. 20 229 Harris v. Weasels, 5 Hun 645 42 Harrison v. Burlingame, 48 Hun 212 26, 61 Hart V. Taylor, 82 N. Y. 373 26, 30 Hartman, In re, 185 Fed. 196 108, 112, 115, 116, 125 Hasbrouek v. Vandervoort, 4 Sandf. 74 19 Haskins v. Kelly, 1 Abb. Pr. (N. S.) 63, 1 Rob. 160 16, 17, 19, 60, 163 Haskins 17. Patterson, 1 Edm. Sel. Oas. 120 17, 18, 19 Hastings v. Parke, 22 Alb. L. J. 115 ' 115, 116 Hathaway v. Brayman, 42 N. Y. 322 149, 164 Hathaway 17. Howell, 54 N. Y. 97 68,69 75 Havens v. Exstein, 9 N. Y. Supp. 605 113 Hawkins v. Beakes, 80 Hun 292, 30 N. Y. Supp. 91 15, 22 Hawkins v. Giles, 45 Hun 318 23 Hawver v. Bell, 19 N. Y. Supp. 612, 46 St. Rep. 447 143 Hayman v. Jones, 7 Hun 238 77 Haynes v. Hart, 42 Barb. 58 245 Hazlett V. Hamilton Storage and Warehouse Co., 47 Misc. 660, 94 N. Y. Supp. 580 141, 146 Hedges v. Polhemus, 9' Misc. 680, 30 N. Y. Supp. 556 109, 118, 123, 125 Heinrich v. Van Wrickler, 80 App. Div. 250, 80 N. Y. Supp. 226 234 Heise v. Selected Securities Co., 105- N. Y. Supp. 1079 10 Hendrick Hudson, The, Fed. Cas. No. 6,358 195 Hendricks v. Robinson, 2 Johns. Ch. 283 48, 154, 164, 167 Henry Elias Brewing Co. v. Boeger, 132 N. Y. Supp. 286 82, 83, 85, 178 Herden v. Walther, 9 N. Y. Supp. 926 94 Herring v. Hoppock, 15 N. Y. 409' 213, 216 Herring V. Willard, 2 Sandf. 418 218 Hesketh v. Stevens, 7 Barb. 488 197 Hess V. Sprague, 13 Week. Dig. 164 24 Hewitt v. Berlin Machine Works, 194 U. S. 286 232 Hickerson, In re, 20 Am. B. R. 682, 162 Fed. 345 208 Hicks, Matter of, 27 Am. B. R. 168 210 Hicks V. Williams, 17 Barb. 523 66, 68, 71, 195 Hill V. Beebe, 13 N. Y. 556 100, 179, 180 Hills V. White, 71 Hun 511, 24 N. Y. Supp. 1065 117, 118 Hincks v. Field, 14 N. Y. Supp. 247, 37 St. Rep. 724 47, 115, 123 Hinman v. Judson, 13 Barb. 629 162 Table of Cases Cited. xxxv [References are to pages.] Hirsch v. Graves Elevator Co., 24 Misc. 472, 53 N. Y. Supp. 664 223 Hobart Electric Mfg. Co. v. Rooder, 121 N. Y. Supp. 274 242 Hof V. Mager, 168 App. Div. 318, 154 N. Y. Supp. 60 77, 82, 84 Hoffman v. White Sewing Mach. Co., 123 App. Div. 166, 108 N. Y. Supp. 253 246, 247 Hollacher v. O'Brien, 5 Hun 277 107 Hopkins v. Davis, 23 App. Div. 235, 48 N. Y. Supp. 745 228 Horton v. Davis, 26 N. Y. 495 85 Howland v. Willett, 3 Sandf. 607 135, 165 Hoyle V. Plattsburgh and Montreal R. Co., 54 N. Y. 314 37, 62 Hoyt V. Martense, 16 N. Y. Supp. 231 26, 133 Huber v. Ehlers, 76 App. Div. 602, 79' N. Y. Supp. 150 68 Huggans v. Fryer, 1 Lans. 276 142, 161 Hughes V. Harlan, 166 N. Y. 427 13, 14, 131 Hughes V. Harlan, 37 App. Div. 528, 55 N. Y. Supp. HOC 131 Hull, In re, 8 Am. B. R. 302, 115 Fed. 858 206 Hull V. Carnley, 11 N. Y. 501 150, 165 Hull V. Carnley, 2 Duer 99 107, 119 Hulsen v. Walter, 34 How. Pr. 385 127, 130, 136, 139, 144, 173 Huntington v. Mather, 2 Barb. 538, 6 N. Y. Leg. Obs. 206 16, 17, 19 Hurley v. AUman Gas Engine and Machine Co., 144 App. Div,. 300, 129 N. Y. Supp. 14 248 Hussey v. Richardson-Roberts Dry Goods Co., 17 Am. B. R. 511, 148 Fed. 598 204 Husted V. Ingraham, 75 N. Y. 251 20, 35, 42 Hutchings v. Munger, 41 N. Y. 155 215 Hyde v. Bloomingdale, 23 Misc. 728, 51 N. Y. Supp. 1025 120, 122 Hyer v. Sutton, 59 Hun 40, 12 N. Y. Supp. 378 143, 161 I Ideal Cash Register Co. v. Zunino, 39 Misc. 311, 79 N. Y. Supp. 504 215, 240 Iden V. Sommers, 29 J. & S. 177, 18 N. Y. Supp. 779 238 Independent Brewing Co. v. Durston, 55 Misc. 498, 106 N. Y. Supp. 686. . 83 Industrial Loan Assoc, v. Saul, 34 Misc. 188, 68 N. Y. Supp. 837 60, 86, 93, 94, 9S, 90', 172 J Jackson v. Kasseall, 30 Hun 231 171 Jacob V. Columbia Storage Warehouses, 125 App. Div. 556, 109 N. Y. Supp. 1015 239, 243 Jacobs V. Feinstein, 133 App. Div. 416 219 James i;. Oakley, 1 Abb. Pr. 324 55 xxxvi Table of Cases Cited. [References are to pages.] Jaqueth v. Merritt, 29 Hun 5S4 99, 105 J. B. Lunt, The, Fed. Oas. No. 7,246 189, 192 Jencks v. Smith, 1 N. Y. 90 32, 70 Jermyu V. Hunter, 93 App. Div. 175, 87 N. Y. Supp. 546 219 Jermyn v. Sehweppenhauser, 33 Misc. 603, 68 N. Y. Supp. 153 219, 220 J. E. Rumbell, The, 148 U. S. 15 192, 196 John Farron, The, 14 Blatchf. 24 196 John T. Moore, The, 3 Woods 61, Fed. Cas. No. 7,430 194, 195, 196 Johnson, In re, 8 Am. B. R. 423, 111 Fed. 404 200 Johnson v. Crofoot, 53 Barb. 574 22 Johnson v. Curtis, 42 Barb. 588 113 Johnson v. Phillips, 2 N. Y. Supp. 432 122, 123 Jonea v. Graham, 77 N. Y. 628 83, 100 Jones V. Howell, 3 Rob. 438 83, 174 Josephine Spangler, The, 9 Fed. 773 195 Judson V. Baston, 58 N. Y. 664 4, 141 K Kane V. Stark, 15 Week. Dig. 509 47 Karst V. Gane, 136 N. Y. 316 59, 66, 67, 78, 81, 88 Karst V. Gane, 61 Hun 533, 16 N. Y. Supp. 385 78 Katz V. Diamond, 16 Misc. 577, 38 N. Y. Supp. 766 128, 238 Kauffman v. Klang, 16 Misc. 379, 38 N. Y. Supp. 56 230 Keefer v. Greene, 16 N. Y. Supp. 498 141, 142, 151, 164 Keller v. Paine, 107 N. Y. 83 54, 68, 69 Keller v. Paine, 34 Hun 167 7 Keller v. Straus, 35 Misc. 35, 70 N. Y. Supp. 126 215 Kelly V. Gushing, 48 Barb. 269 190 Kemp V. Cornley, 3 Duer 1 50 Kennedy v. National Union Bank of Watertown, 23 Hun 494.... 28, 29, 35, 42, 79, 83 Kennedy v. Strobel, 77 Hun 96, 28 N. Y. Supp. 452 184 Kenney v. Planer, 3 Daly 131 218 Kerby v. Clapp, 15 App. Div. 37, 44 N. Y. Supp. 11© 219, 223 Kerr v. Dildine, 6 St. Rep. 163 112, 116 Kilburn v. Low, 12 Week. Dig. 566 98 Kimball v. Farmers and Mechanics' Nat. Bank, 138 N. Y. 500i 4, 173, 189, 197, 198, 199 Kimball v. Farmers and Mechanics' Nat. Bank, 11 N. Y. Supp. 730, 33 St. Rep. 870 198 Kindleberger v. Kunow, 122 App. Div. 158, 106 N. Y. Supp. 597 234 King V. Van Vleck, 109 N. Y. 363 26, 129 Table of Cases Cited. xxxvii [References are to pages.] King V. Van Vleek, 40 Hun 68 19i 129, 131, 152 King V. Walbridge, 48 Hun 470, 1 N. Y. Supp. 11 154 Kings Co. Bank v. Courtney, 69 Hun 152, 23 N. Y. Supp. 542 80 Kinsey v. Bailey, 9 Hun 452 36, 37 Kirk V. Crystal, 118 App. Div. 32, 103 N. Y. Supp. 17 .219, 220, 230 Kitchen v. Lowery, 127 N. Y. 53 79, 80, 90, 127, 130 Klein v. Cohen, 142 App. Div. 50O, 127 N. Y. Supp. 171 230, 238 Kleinherger v. Brown, 26 J. & S. 4, 8 N. Y. Supp. 866 126, 164, 174 Knapp V. Alvord, 10 Paige 205 63 Knapp V. Gregory, 20 N. Y. Supp. 21 122 Koehler & Son Co. v. Plebbe, 21 App. Div. 210, 47 N. Y. Supp. 369 26 Kraus v. Black, 56 Misc. 641, 107 N. Y. Supp. 609 4, 141, 142 Kribbs v. Alford, 120 N. Y. 519 28, 33, 35, 60 Lain v. Sayer, 50 App. Div. 554, 64 N. Y. Supp. 248 77, 86, 125 Lambert v. Leland, 2 Sweeney 218 184 Lane v. Lutz, 1 Keyes 203, 3 Abb. Dec. 19 78 Langdon v. Buel, 9 Wend. 80 3, 18, 19, 177 Lathers v. Hunt, 16 Daly 135, 9 N. Y. Supp. 494 63, 146, 153, 157 Lathers V. Hunt, 16 Daly, 349, 10 N. Y. Supp. 529 145 Lathrop v. Selleck, 70 App. Div. 357, 74 N. Y. Supp. lOl 228 Latimer v. Wheeler, 30 Barb. 485 99 Leadbetter v. Leadbetter, 125 N. Y. 290 137, 138, 164, 166 Ledoux V. Bank of America, 24 App. Div. 123, 48 N. Y. Supp 771 67 Ledoux V. East River Silk Co., 19 Misc. 440, 44 N. Y. Supp 489 80, 81 Lee V. Huntoon, HoflF. Ch. 447 63, 65, 105 Leigh, In re, 2 Am. B. R. 606 208 Leitch V. Hollister, 4 N. Y. 211 20, 21, 118 Leland, In re. Fed. Cas. 8,234, 10 Blatchf. 503 87, 93 Lembcck, etc.. Brewing Co. v. Sexton, 184 N. Y. 185 27, 156, 157, 158, 159 Lempke v. Peterson, 1 City Ct. R. 15 174 Leonard v. Montague, 155 App. Div. 506, 140 N. Y. Supp. 562 245, 247 Leslie v. HoflFman, 1 Edm. Sel. Cas. 475 54, 55 Levin v. Russell, 42 N. Y. 251 103 Levy V. Hamilton, 68 App. Div. 277, 74 N. Y. Supp. 159 49, 121, 122, 123 Levy V. Horn, 90 Misc. 624, 153 N. Y. Supp. 913 55, 213 Levy V. Reich, 78 Misc. 413, 138 N. Y. Supp. 419 144 Levy V. Welsh, 2 Bdw. Ch. 438 28, 29 Lewis V. Graham, 4 Abb. Pr. 106 2, 16, 19 Lewis V. Palmer, 28 N. Y. 271 100, 169 Live Oak, The, 30 Fed. 78 196 Livor V. Orser, 5 Duer 501 128, 152, 165, 167 Loewenstein v. Loewenstein, 114 App. Div "iS, 99 N. Y. Supp. 730 182 xxxviii Table of Cases Cited. [References are to pages.] London Realty Co. v. Coleman Stable Co., 140 App. Div. 495, 125 N. T. Supp. 410 44, 45 Longenecker v. Kuhn, 126 App. Div. 254, 110 N. Y. Supp. 517 129, 141 Look V. Comstock, 15 Wend. 244 47, 119 Lord V. Yonkers Fuel Gas Co., 99 N. Y. 5S1 44 Loss V. Fry, 1 City Ct. Rep. 7 169 Lottowanna, The, 21 Wall 558 , 196 Ludden v. Hazen, 31 Barb. 650 218, 219 Ludwig V. Kipp, 20 Hun 265 29, 35 Ludwig, Bauman & Co. v. Roth, 67 Misc. 458, 123 N. Y. Supp. 191 173 Luken, In re, 14 Am. B. R. 683, 133 Fed. 188 208 Lyman v. Bowe, 66 How. Pr. 481 165 Lynch v. Tibbets, 24 Barb. 51 127, 181, 184 M Mablett v. White, 12 N. Y. 454 41 Mack V. Phelan, 92 N. Y. 20 100, 149 Madrid, The, 40 Fed. 677 192, 194 Mahland, In re, 26 Am. B. R. 81 208 Maitland v. The Atlantic, Newb. Adm. 514, Fed. Cas. No. 8,980 190, 191 Malcom v. O'Reilly, 89 N. Y. 156 148 Maloughney v. Hegeman, 9 Abb. N. C. 403 151 Manchester v. Tibbetts, 121 N. Y. 219 121, 164 Mandeville v. Avery, 124 N. Y. 376 108, 118, 125 Manhattan Co. v. Laimbeer, 108 N. Y. 590 76 Manning v. Monaghan, 23 N. Y. 539 151 Manning v. Monaghan, 28 N. Y. 585 150, 151, 165 Manning v. Monaghan, 10 Bosw. 231 97 Manufacturers' Nat. Bank of New York v. Eober, 19 Week. Dig. 476 . 77, 79, 80 Manufacturers', etc., Bank of Buffalo v. Koch, 8 St. Rep. 37 115, 117 Marsden v. Cornell, 62 N. Y. 215 49', 94, 95, 100, 102, 122 Marsh v. Kinney, 11 Week. Dig. 144 48 Marsh v. Lawrence, 4 Cow. 461 8, 164 Marsh V. The Winnie, Fed. Cas. No. 9,117 195 Marsop v. O'Neill, 1 Month. L. Bull. 67 86 Marston v. Vultee, 8 Bosw. 129, 12 Abb. Pr. 143 109, 111, 117 Martin v. Hill, 12 Barb. 631 54 Martin V. Hulen & Co., 17 Am. B. R. 510, 149 Fed. 982 201 Martin v. Lewinski, 54 App. Div. 573, 66 N. Y. Supp. 995 149 Martin v. Rothschild, 42 Hun 410 70 Matthews v. Sheehan, 69 N. Y. 585 7, 10, 13, 14, 47, 129, 147 Matthews v. Sniffen, 10 Daly 200 60^ 52 Table of Cases Cited. xxxix [References are to pages.] Hatthews v. Victor Hotel Co., 132 N. Y. Supp. 37& 3, 86, 140, 170 Mattison v. Baucus, 1 N. Y. 295 164, 165 Mattley v. Giesler, 26 Am. B. R. 116 205, 206 Maxwell v. Inman, 42 Hun 265 185 McAdam v. Spielberry, 1 Month. L. Bull. 71 115 McCaffrey v. Woodin, 65 N. Y. 459' ' 22, 29, 30, 32, 34, 35, 39 McClelland v. Eemsen, 36 Barb. 622 21 McClelland v. Eemsen, 3 Abb. Dec. 74, 5 Abb. Pr., N. S., 250 41 HcCombs V. Becker, 3 Hun 342 23 McCormick v. Venable, 12 N. Y. Supp. 152 100 McCrea v. Hopper, 35 App. Div. 572, 55 N. Y. Supp. 136. .93, 100, 101, 156, 158 McDavid Lumber Co., In re, 27 Am. B. R. 39 201 McDermott v. Strong, 4 Johns. Ch. 687 167, 168 McDonald, Matter of, 23 Am. B. E. 51, 173 Fed. 99 208 McDonald v. City Trust Safe Deposit & Surety Co., 30 Misc. 562, 80 N. Y. Supp. 405 88 McDonald v. Safe Deposit & Surety Co., 32 Misc. 644, 66 N. Y. Supp. 475 51, 81 McEhron v. Martine, 111 App. Div. 805, 97 N. Y. Supp. 951 27 McEntee v. Scott, 2 T. & C. 284 216 McFarland v. Wheeler, 26 Wend. 467 16 McGovern, Matter of, 118 N. Y. Supp. 378 80, 98 Mclntyre v. ^cott, 8 Johns. 159 197 HcKinster v. Babcock, 26 N. Y. 378 48, 49, 122 McLachlan v. Wright, 3 Wend. 348 106 McLean v. Bloeh, 52 Misc. 545, 102 N. Y. Supp. 838 224 McLean v. Walker, 10 Johns. 471 • 19 McLoon, In re, 20 Am. B. R. 719, 162 Fed. 575 202 McMillan v. Leaman, 101 App. Div. 436, 91 N. Y. Supp. 1055 219 MeNeeley v. Welz, 166 N. Y. 124 26, 28, 30 Mechanics and Traders' Bank v. Bergen Heights Realty Corp., 137 App. Div. 45, 122 N. Y. Supp. 33 220, 231 Medina, etc.. Light Co. v. Buffalo, etc.. Safe Deposit Co., 119 App. Div. 245, 104 N. Y. Supp. 625 28, 34 Meeeh v. Patchin, 14 N. Y. 71 59, 90 Merchants Banking Co. v. Cargo of Afton, 134 Fed. 727, 67 C. C. A. 618 198, 199 Merritt v. Bartholick, 36 N. Y. 44 177 Merry v. Wilcox, 92 Hun 210, 36 N. Y. Supp. 1060 67, 90 Metropolitan Concert Co. v. Sperry, 9 St. Rep. 342 36 Michelson v. Fowler, 27 Hun 159 129 Hidas V. Lefstein, 126 N. Y. Supp. 535 153 Milicie v. Pearson, 110 App. Div. 770, 97 N. Y. Supp. 431 219 Miller V. Lockwood, 32 N. Y. 293 48, 49, 112, 122, 180 xl Table of Oases Cited. [References are to pages.] Millicamp v. People, 14 Week. Dig. 252 128 MiUiman v. Neher, 20 Burb. 37 21, 33, 111 Mills V. Virginia-Carolina Lumber Co., 20 Am. B. R. 750, 164 Fed. 168. . 209 Hiln V. Spinola, 4 Hill 177 ^ 198 Hiner v. Judsou, 2 Hun 441 3 Mitcliell V. Dane, 129 N. Y. Supp. 404 142, 143 Mittnacht v. Kelly, 3 Keyes 407, 5 Abb. Pr., N. S., 442 115, 123 Holoughney i'. Hegeman, 9 Abb. N. C. 403 150 Moneyweight Scale Co. v. Mehling, 69 Misc. 331, 125 N. Y. Supp. 532 .-. 240, 241, 242, 243 Monnot v. Ibert, 33 Barb. 24 42, 48, 179 Montague v. Wanamaker, 67 Mise. 650, 124 N. Y. Supp. 805 247, 248 Montgomery v. Lee, 10 St. Rep. 119 155 Moore v. Bloomingdale, 126 N. Y. Supp. 125 247 Moore v. Prentiss Tool and Supply Co., 133 N. Y. 148 3, 126, 128, 173 Moore v. Simonds, 100 U. S. 145 194 Moran v. Abbott, 26 App. Div. 570, 50 N. Y. Supp. 337 234 Morgan v. Shinn, 15 Wall. (U. S.) 105 10, 197, 198 Moses V. Walker, 2 Hilt. 536 77, 149, 151 Moss V. Lightfine, 60 Misc. 62, HI N. Y. Supp. 675 167 Mott V. Ruckman, 3 Blatchf . 71, Fed. Gas. No. 9,881 195 Moyer v. Bloomingdale, 38 App. Div. 227, 56 N. Y. Supp. 991 27 Munson, Matter of, 70 Misc. 461, 128. N. Y. Supp. 1106 62, 79, 80, 89 Murdoek v. Gifford, 18 N. Y. 28 36 Murphy v. Moore, 23 Hun 95 120 Murray v. Burtis, 15 Wend. 212 107 Murray v. Lese, 86 N. Y. Supp. 581 234 Murtlia V. Curley, 15 J. & S. 393 124 N Nash V. Ely, 19 Wend. 523 63, 107 National Bank of Deposit v. Rogers, 166 N. Y. 380 27, 28, 30 National Cash Register Co. V. Coleman, 85 Hun 125, 32 N. Y. Supp. 593 164, 213, 241, 242 National Cash Eeg. Co. v. Ferguson, 25 Misc. 363, 55 N. Y. Supp. 592 243 National Cash Register Co. v. Schmidt, 48 App. Div. 472, 62 N. Y. Supp. 952 : 240 National Cash Register Co. v. South Bay, etc., Assoc, 64 Misc. 125, 118 N. Y. Supp. 1044 239 National Nassau Bank v. Cleary, 171 App. Div. 540, 157 N. Y. Supp. 696. . . 17 Neidig v. Eifler, 18 Abb. Pr. 353 61 Nelson v. Drake, 14 Hun 465 45 Nelson v. Gibson, 143 App. Div. 894, 129 N. Y. Supp. 702 212, 213, 216, 218, 237, 242 Table of Cases Cited. xli [References are to pages.] Nelson v. Neil, 15 Hun 383 72 Nestell V. Hewitt, 19 Abb. N. C. 282 22, 32, 33, 39 Newell V. Warner, 44 Barb. 258 94, 96 Newell V. Warren, 44 N. Y. 244 94 Newman v. Peyser, 80 Misc. 404, 141 N. Y. Supp. 422 115 Newsam v. Finch, 25 Barb. 175 130, 136 New York Economical Printing Co., In re, 110 Fed. 514 44, 94, 98, 208 New York Security & Trust Co. ■;;. Saratoga Gas & Light Co., 88 Hun 569, 34 N. Y. Supp. 890 43, 62 Niagara County Bank v. Lord, 33 Hun 557 60, 77 Niagara Falls, etc., Co. v. Sehermerhorn, 132 App. Div. 442^ 117 N. Y. Supp. 10 61 Niceloy v. Treasure, 115 N. Y. Supp. 1030.. 4, 83, 180 Nichols V. Coleman, 96 App. Div. 154, 89 N. Y. Supp. 481 241 Nichols V. Lyon, 14 St. Rep. 549 21 Nichols V. Mase, 94 N. Y. 160 53, 142 Nichols V. Mase, 25 Hun 640 53 Nichols V. Mead, 2 Lans. 222 : 164 Nichols V. Potts, 35 Misc. 273, 71 N. Y. Supp. 765 228, 230, 231 Niles V. Mathusa, 162 N. Y. 546 25, 26, 61 Nitchie v. Townsend, 2 Sandf. 299 94 Northwestern Ins. Co. v. Ferward, 36 N. Y. 139 191 Norton v. Abbott, 113 N. Y. Supp. 669 239 Noyes v. WyckoflF, 30 Hun 466 2, 182 Nybor v. Doll & Sons, Inc., 167 App. Div. 225, 228, 152 N. Y. Supp. 650...246, 247 o Olcott V. Tioga R. Co., 27 N. Y. 546 154, 155 Olcott V. Tioga R. Co., 40 Barb. 179 3, 129, 144, 161, 183 Oppenheimer v. Moore, 107 App. Div. 301, 95 N. Y. Supp. 138 142, 161 Orcutt V. Rickenbrodt, 42 App. Div. 238, 59 N. Y. Supp. 1008 242 O'Rourke v. Hadcock, 114 N. Y. 541 155, 215, 235 Osborn v. Alexander, 40 Hun 323 96, 97, 105 Ostrander v. Fay, 3 Abb. Dec. 431 116 Ostrander v. Bricka, 91 Misc. 255, 154 N. Y. Supp. 786 245 Ostrander v. Webber, 114 N. Y. 95 151, 156, 161 Otis V. Sill, 8 Barb. 102 28, 30, 34, 35, 52, 65, 103, 107 Owen V. Evans, 134 N. Y. 514 177 P Page V. Larrowe, 22 N.- Y. Supp. 1099, 51 St. Rep. 35 31, 33 Panooast v. American Heating & Power Co., 66 How. Pr. 49 77 Parish v. Wheeler, 22 N. Y. 494 46, 140, 151, 152 Parker Mills v. Jacob, 8 Bosw. 161 195 Parmenter V. Fitzpatrick, 14 N. Y. Supp. 748, 38 St. Rep. 367 10 xlii Table of Cases Cited. [References are to pages.] Parshall v. Eggart, 54 N. Y. 18 2, 17, 78, 79, 80 Parshall v. Eggart, 52 Barb. 367 6, 67 Patchin v. Pierce, 12 Wend. 61 4, 10, 49, 131 139, 141, 153 Patterson v. Gillies, 64 Barb. 563 92a, 95 Pekin Plow Co., In re, 7 Am. B. E. 369, 112 Fed. 308 208 People V. Durante, 19 App. Div. 292, 45 N. Y. Supp. 1073 26, 128 People V. Gluck, 188 N. Y. 167 216 People V. Eemington & Sons, 58 Hun 282, 12. N. Y. Supp. 824 2, 4, 5, 16, 17, 18, 130 People V. Staton, 79 App. Div. 634, 80 N. Y. Supp. 2 128 People eso rel. Stevens v. Hoyt, 66 N. Y. 606 70, 76 Perkins v. Batterson, 66 Hun 583, 21 N. Y. Supp. 815 28, 29, 30, 35 Peter Barret Mfg. Co. v. Van Eonk^ 149 App. Div. 194, 134 N. Y. Supp. 691.. 171 Pettit V. King, Seld. Notes 208 129 Pfeiffer v. Eoe, 108 App. Div. 54, 95 N. Y. Supp. 1014 113, 124, 125 Pfluke V. Popuhas, 42 Misc. 15, 85 N. Y. Supp. 541 109 Phenix Mills V. Miller, 4 St. Eep. 787, 25 Week. Dig. 290 181, 185 Phenix Nat. Bank V. Cleveland Co., 11 N. Y. Supp. 873, 34 St. Eep. 498. . . 4, 137, 141, 153, 168 Phillips V. Ledley, 1 Wash. C. C. 226, Fed. Gas. No. 11,096 189, 197, 198 Pieone v. Freeman, 115 N. Y. Supp. 128 212, 213 Piser V. Steams, 1 Hilt. 86 213, 218 Pittsburgh Plate Glass Co. v. Edwards, 17 Am. B. E. 447, 148 Fed. 377 204, 205 Piatt V. New York & Sea Beach E. Co., 9 App. Div. 87, 41 N. Y. Supp. 42 29, 46, 62 Plumiera v. Bricka, 79 Misc. 468, 140 N. Y. Supp. 171 247 Pochell V. Eead, 20 App. Div. 208 123 Porter v. Parmley, 43 How. Pr. 445, 13 Abb. Pr., N. S., 104 3, 4, 5i 126, 127, 141, 154, 156, 183 Porter v. Parmley, 52 N. Y. 185 4, 85, 93, .103, 104, 130, 164 Potter V. Traders' Nat. Bank, 70 Hun 53, 23 N. Y. Supp. 1079 85 Potter Printing Press Co. V. Schreiner, 47 App. Div. 530v 62 N. Y. Supp. 492 214 Potts V. Hart, 9& N. Y. 168 108, 109, 110, 125 Powers V. Burdick, 126 App. Div. 179, 110 N. Y. Supp. 883 13, 216, 244 Powers V. Elias, 21 J. & S. 480 4, 164 Powers V. Freeman, 2 Lans. 127 17, 40, 70, 71, 85, 101 Pratt V. Stiles, 17 How. Pr. 211, 9 Abb. Pr. 150 130, 131, 132, 156 Prentiss Tool & Supply Co. v. Schirmer, 17 N. Y. Supp. 662, 45 St. Eep. 20 10 Preston v. Southwick, 115 N. Y. 139 9, 60, 74 Pugh V. Kraft, 126 N. Y. Supp. 162 130 Pulver V. Eichardson, 3 T. & C. 436 137, 144, 145, 161 Table of Cases Cited. xliii [References are to pages.] Q Quattrone v. Simon, 85 Misc. 357, 147 N. Y. Supp. 448 241, 246 Quinn, etc.. Brewing Co. v. Hart, 48 Hiin 393, 1 N. Y. Supp. 388 118 Quirk V. Eodman, 5 Duer 285 14, 16 R Randall v. Carman, 89 Hun 84, 35 N. Y. Supp. 53 110, 113 Randall v. Cook, 17 Wend. 53 166 Randall v. Dunbar, 14 Week. Dig. 332 93, 98, 130, 153 Ratchford v. Cayuga, etc.. Warehouse Co., 217 N. Y. 565 242 Redman v. Hendricks, 1 Sandf. 32 141, 145, 165 Reedy Elevator Co. v. Herman, 107 N. Y. Supp. 59 239 Repelow v. Walsh, 98 App. Div. 320, 90 N. Y. Supp. 651 138, 139 Reuscher v. Klein, 3 J. & S. 446 141 Reynolds v. Ellis, 103 N. Y. 115 22, 111, 125 Reynolds v. Ellis, 34 Hun 47 22, 35, 78 Rich V. Milk, 20 Barb. 616 140 Rickerson v. Raeder, 4 Abb. Dec. 60, 1 Keyes 492 184 Ricketts v. Wilson, 26 Week. Dig. 193, 6 St. Rep. 508 10 Riley v. Sexton, 32 Hun 245 51 Ring V. Pranklin, 2 Hall 1 197, 198 Ripley v. Larmonth, 66 Barb. 21 49 Roach V. Curtis, 191 N. Y. 387 246 Roach V. Curtis, 115 App. Div. 765, 101 N. Y. Supp, 333.... 212, 213, 215, 233 Robertson e. Ongley Electric Co., 146 N. Y. 20 138 Robertson v. United Ins. Co., 2 Johns. Cas. 250 191 Robinson v. Cropsey, 6 Paige 480 14, 15 Robinson v. Hawley, 45 App. Div. 287, 61 N. Y. Supp. 138 120i, 124, 167 Robinson v. Kaplan, 21 Misc. 686, 47 N. Y. Supp. 1083 98 Robinson v. Wilcox, 2 Leg. Obs. 160 137, 157 Robson V. Dailey, 130 N. Y. Supp. 1036 62, 115 Rochester Distilling Co. v. Rasey, 142 N. Y. 570 2, 30, 35 Rochester Distilling Co. V. Rasey, 65 Hun 512, 20 N. Y. Supp. 583... 32, 33 Rode & Horn V. Phipps, 27 Am. B. R. 827 200, 201 Rodney Hunt Machine Co. v. Stewart, 57 Hun 545, 11 N. Y. Supp. 448. . 228, 229, 237 Rogers v. Dwight, 71 Hun 547, 25 N. Y. Supp. 39 77 Rogers v. Traders' Ins. Co., 6 Paige 583 2, 5, 129, 179, 180, 183 Ross V. Titterton, 6 Hun 280 158 xliv Table oit Cases Cited. [References are to pages.] Eoy V. Birdseye, 5 Denio 619 60 Rudd V. Robinson, 54 Hun 339, 7 N. Y. Supp. 535 67, 87, 103 Rudmein v. Bershadsky, 121 N. Y. Supp. 596 '. 120, 141 Russell V. Butterfield, 21 Wend. 300 130, 138 Russell V. St. Mart, ISO N. Y. 355 72, 78, 81, 86, 89, 99 Russell V. Winne, 37 N. Y. 591 51, 108, 10«j 123 Rust V. H9,uselt, 14 J. & S. 22 78 Rust V. Moore, 2 Hill 655 107 Rutland County Nat. Bank v. Graves, 19 Am. B. R. 446, 156 Fed. 168 204, 206, 206 Ryan v. Wollowitz, 25 Misc. 498, 54 N. Y. Supp. 988 218, 228 Saitch V. KeUy, 154 App. Div. 864, 139 N. Y. Supp. 534 247 Salisbury v. Philips, 10 Johns. 57 148 Salmon v. Norris, 82 App. Div. 362, 81 N. Y. Supp. 892. . . .97, 98, 101, 161, 162 Sanborn, In re, 3 Am. B. R. 54, 96 Fed. 507. 209 Sanger v. Eastwood, 19 Wend. 514 82 Saratoga Holding Co. v. Washburn, 70 Misc. 110, 127 N. Y. Supp. 1016. . .4, 163 Savall V. Wauful, 21 Civ. Pro. R. 18, 16 N. Y. Supp. 219 213, 214, 216, 234 Sayles v. Nat. Water, etc., Co., 16 N. Y. Supp. 555 219 Sc'herl v. Flam, 129 App. Div. 561, 114 N. Y. Supp. 86 212, 217, 222, 231 Scherzer v. Muirhead, 84 N. Y. Supp. 159 156 Schmidt, In re, 181 Fed. 73 67, 79, 88 Schmidt v. Weeks, 142 App. Div. 83, 127 N. Y. Supp. 39 4 Schoenroek v. Farley, 17 J. & S. 302 ; 16 Schuchardt v. The Angelique, Fed. Cas. No. 12,483-b 196 Schuchardt v. The Angelique, Fed. Cas. No. 12,483-e 196 Schuyler's Steam Tow Boat Co., Matter of, 64 Hun 384, 18 N. Y. Supp. 89. 130 Schwab Mfg. Co. v. Aizenman, 106 App. Div. 478, 94 N. Y. Supp. 729 98, 99, 173, 174, 176 Schwarzchild & S. Co. v. Mathews, 39 App. Div. 477, 57 N. Y. Supp. 33g 4j gg Scotia, The, 35 Fed. 907 .'. . .' 196 Scott V. 1,000 Island Boat and Engine Co., 134 N. Y. Supp. 150 95, 96, 103 Scott V. Delahunt, 65 N. Y. 128 169 Seeley v. Prentls Tool & Supply Co., 158 App. Div. 853, 144 N. Y. Supp. 48 247 Shaferman v. Loman, 32 Misc. 726, 66 N. Y. Supp. 380 214 Shaw V. Cooke, 111 App. Div. 202, 97 N. Y. 236 181 Sheldon v. McFee, 216 N. Y. 618 8, 60, 149 Sheldon V. Wickham, 161 N. Y. 500 77, 86, 87 103 Sheldon v. Wickham, 27 App. Div. 628, 50 N. Y. Supp. 314 78 Shelton V. Holzwasser, 46 Misc. 76, 91 N. Y. Supp. 328 141, 162 Table of Cases Cited. xlv [References are to pages.] Sheppard v. Earles, 13 Hun 651 156 Sherman v. Foster, 158 N. Y. 587 168, 180 Sherman v. Slayback, 58 Hun 255, 12 N. Y. Supp. 291 131, 141, 144, 153, 154, 156, 161 Shiebler, In re, 165 Fed. 363 66 Shuart v. Taylor, 7 How. Pr. 251 32, 140 Shuler v. Boutwell, 18 Hun 171 74, 180 Shutter v. Ward, 16 Week. Dig. 69 99 Siedenbach v. Riley, 111 N. Y. 560 63, 64 Sigal V. Hatch Co., 61 Misc. 332, 113 N. Y. Supp. 818 246 Simmons v. Osgoodby, 16 Week. Dig. 429 103 Simpson Crawford Co. v. Knight, 130 N. Y. Supp. 236 241 Sims V. Hodge, 3 N. Y. Supp. 228, 21 St. Eep. 955 114 Sinclair v. Wood, 13 Week. Dig. 323 180 Singer Mig. Co. v. Becket, 85 N. Y. Supp. 391 172 Singer Sewing Machine Co. v. Leipzig, 113 N. Y. Supp. 916 241 Sisson V. Hibbard, 75 N. Y. 542 36 Skilton V. Codington, 185 N. Y. 80 29, 79, 80, 87, 103, 108, 111, 112, 114, 115, 208, 232 Skilton V. Codington, 86 App. Div. 166, 83 N. Y. Supp. 351 77, 123 Slee V. Manhattan Co., 1 Paige 48 26, 133 Sloan V. National Surety Co., 74 App. Div. 417, 77 N. Y. Supp. 428 93, 104 Sloan V. National Surety Co., Ill App. Div. 94, 97 N. Y. Supp. 561 93, 105 Smedback v. Wolffe, 21 Misc. 82, 46 N. Y. Supp. 968 239 Smith V. Acker, 23 Wend. 653 66, 68, 107 Smith V. Beattie, 31 N. Y. 542 8, 10 Smith V. Clarendon, 6 N. Y. Supp. 809 78, 79 Smith V. Cooper, 22 Hun 11 97, 105 Smith V. Cooper, 27 Hun 565 115 Smith V. Post, 1 Hun 516, 3 T. & C. 647 120, 123, 142, 143 Smith r. Smalley, 19 App. Div. 519, 46 N. Y. Supp. 277 148, 149, 150, 151 Smith 1'. Taber, 46 Hun 313 22 Soudans Mfg. Co., In re, 8 Am. B. R. 45, 113 Fed. 804 207, 208 Southard v. Benner, 72 N. Y. 424 108, 109, 110, 115, 125 Southard v. Pinckney, 5 Abb. N. C. 184 109', 115, 124, 125 Southworth v. Isham, 3 Sandf. 448 29, 190 Spaulding v. Keyes, 125 N. Y. 113 112, 114, 121 Spaus V. Stolwein, 134 N. Y. Supp. 603 234 Sperry v. Baldwin, 46 Hun 120 114, 115, 118 Spies V. Boyd, 1 E. D. Smith 445 119, 123 Spitaleri ». Brown, 163 App. Div. 644, 148 N: Y. Supp. 1005 246 Spraights v. Hawley, 39 N. Y.' 441 150 Spurr V. Hall, 46 App. Div. 454, 61 N. Y. Supp. 854 109, 111, 112 Stage V. Van Leuvan, 77 App. Div. 646, 78 N. Y. Supp. 960 130, 143 Stalker v. The Henry Kneeland, Fed. Oas. No. 13,282 198 xlvi Table of Oases Cited. [References are to pages.] Stanley ». Nat. Union Bank, 115 N. Y. 122 103, 121 Stanwix v. Leonard, 125 App. Div. 299, 109 N. Y. Supp. 804 176, 179 State Bank of Williamson v. Fish, 120 N. Y. Supp. 365 45, 62 State Trust Co. v. Casino Co., 5 App. Div. 381, 3» N. Y. Supp. 258 37, 63, 98, 99, 172 State Trust Co. v. Casino Co., 19 App. Div. 344, 46 N. Y. Supp. 492 37, 61, 62 Stearns v. Oberle, 47 Misc. 349, 94 N. Y. Supp. 37 '. 3, 56, 135 Stedman v. Batehelor, 8 N. Y. Supp. 37, 28 St. Rep. 436 ' 115, 117 Steele v. Benham, 84 N. Y. 634 64 Steffin V. Steffin, 4 Civ. Pro. R. 179 22, 23, 79 Stephens v. Meriden Britannia Co., 160 N. Y. 178 77, 79, 86, 87, 89 Stephens v. Perrine, 143 N. Y. 476 78, 86, 87, 88, 89 Sterling v. Rogers, 25 Wend. 658 146 Stevens v. Buffalo & N. Y. City R. R. Co., 31 Barb. 590 37, 81, 85 Stevens v. Watson, 4 Abb. Dec. 302 28, 35 Steward v. Cole, 43 Hun 164 97, 102 Stewart v. Beale, 7 Hun 406 4, 62, 79, 164, 167, 168 Stewart v. Fidelity Loan Assoc, 19 Misc. 49, 42 N. Y. Supp. 705. .27, 29, 30 Stewart v. Piatt, 101 U. S. 731 ! .70, 71, 72, 77, 87 Stewart v. Slater, 6 Duer 83 107, 119 Stockham v. Allard, 2 Hun 67, 4 T. & C. 279 95 Stoddard V. Denison, 7 Abb. Pr., N. S., 309, 38 How. Pr. 296 3, 4, 129, 131, 132, 144, 153, 154 Streeter ». Ward, 12 St. Rep. 333 2, 21 Sturtevant v. Ballard, 9 Johns. 337 119 Sullivan v. Miller, 106 N. Y. 6S5 79 Sullivan v. Toole, 26 Hun 203 36 Susman v. Whyard, 149 N. Y. 127 10, 14 Sweet V. Lawrence, 35 Barb. 337 72 Swift V. Hart, 12 Barb. 530 107, 136 Talman v. Hawxhurst, 4 Duer 221 82 Talman v. Smith, 39 Barb. 390 4, 5, 131, 141, 153 Tannenbaum v. Schaffer, 122 N. Y. Supp. 180 158 Tarbel v. Bradley, 7 Abb. N. C. 273 61 Taylor v. Esselstyn, 62 Misc. 633, 115 N. Y. Supp. 1105 240 Tedesco v. Oppenheimer, 15 Misc. 522, 37 N. Y. Supp. 1073 16, 63, 64 Terry v. Marshall, 16 Week. Dig. 87 180 Terwilliger v. Ontario, Carbondale, etc., E. Co., 149 N. Y. 86 17, 40, 106 Iheriot v. Prince, 1 Edm. Sel. Cas. 219 96 Table of Cases Cited. xlvii [References are to pages.] Third Nat. Bank v. Shields, 55 Hun 274, 8 N. Y. Supp. 988'. .144, 145, 146, 169 Thomas v. Benton, 34 Hun 88 22, 65 Thomas Fletcher, The, 24 Fed. 375 196 Thompson v. Blanchard, 4 N. Y. 303 9, 81, 107 Thompson v. Fuller, 8 N. Y. Supp. 62 89, 115 Thompson v. Van Vechten, 27 N. Y. 568 47, 55, 78, 79, 83, 86, 98, 99, 178 Thompson v. Van Vechten, 5 Abb. Pr. 458 194 Thorn v. Hicks, 7 Cow. 697 197 Thourot V. Delahaye Import Co., 69 Misc. 351, 125 N. Y. Supp. 827 172 Thurber v. The Fannie, 8 Ben. 429, Fed. Cas. No. 14,014 195 Thurber v. Minturn, 18 Week. Dig. 25 50 Tiffany v. Warren, 37 Barb. 571, 24 How. Pr. 293 82, 84 Tifft V. Barton, 4 Den. 171 151 Tifft V. Horton, 53 N. Y. 377 37, 219 Tilden v. Tilden, 26 Misc. 672, 57 N. Y. Supp. 864 35, 37, 62 Tindal, In re, 18 Am. B. R. 773, 155 Fed. 456 204 Titusville Iron Co. v. City of New York, 207 N. Y. 203 28, 35, 87, 208 Tobenkin v. Piermont, 116 N. Y. Supp. 718 228 Tompkins v. Fonda Glove Lining Co., 188 N. Y. 261 216, 228, 238 Tooker v. Seigel-Cooper Co., 194 N. Y. 442 66, 67, 68 Tooker v. Siegel-Cooper Co., 55 Misc. 68, 106 N. Y. Supp. 277 79 Topping V. Lynch, 2 Rob. 484 64 Tremaine v. Mortimer, 128 N. Y. 1 78, 88, 90, 103, 104, 127, 130 Tucker v. Werner, 2 Misc. 193, 21 N. Y. Supp. 264 169 Tunis V. Hodge, 50 Hun 410, 3 N. Y. Supp. 228 107 Tweedie v. Clark, 114 App. Div. 296, 90 N. Y. Supp. 856. .12, 27, 214, 216, 244 Tyler v. Strang, 21 Barb. 198 10, 26, 60, 81 Tyler v. Taylor, 8 Barb. 585 42, 176 u Underhill V. Reinor, 2 Hilt 319 ...« , 149, 160 V Van Doren v. Baity, 11 Hun 239 42 Van Hassel v. Borden, 1 Hilt. 128 141 Van Heusen v. Radclifl, 17 N. Y. 580 50, 83, 84, 86 Van Houten, Matter of, 18 App. Div. 301, 46 N. Y. Supp. 190 98 Van Leevan V. Fish, 28 Misc. 443, 59 N. Y. Supp. 183 228 Van Loon V. Willis, 13 Daly 281 137, 139 Van Slyck v. Newton, 10 Hun 554 27 19 xlviii Table of Oases Cited. [References are to pages.] Van Vechten v. McKone, 69 Hvm 510, 23 N. Y. Supp. 428 31, 50 Vincinguerra v. Fagan, 57 Misc. 224, 100 N. Y. Supp. 317 223, 229 Volekers v. Sturke, 18 Misc. 457, 42 K Y. Supp. 87 80 Voorhees v. McGinnis, 48 N. Y. 282 37, 219 Vreeland v. Piatt, 17 N. Y. Supp. 307, 42 St. Rep. 582. .59, 66, 67, 68, 115, 117 w Wade, In re, 26 Am. B. E. 434 200 Wagoner v. Jones, 7 Daly 375 85, 109 Wait V. Green, 36 N. Y. 556 218 Walker v. Henry, 85 N. Y. 130 105, 181 Walker v. Snedlker, Hoff. Ch. 145 48, 49, 122 Wallace v. Leoni, 104 N. Y. Supp. 392 50 Ward V. Ward, 145 Fed. 1023 77 Warner v. Zeuchel, 19 App. Div. 494, 46 N. Y. Supp. 569 237, 247 Washington Trust Co. v. Morse Iron Works & Dry Dock Co., 106 App. Div. 195, 94 N. Y. Supp. 495 213, 220, 231 Washington Trust Co. v. Morse Iron Works, 187 N. Y. 307 219 Watson V. Campbell, 38 N. Y. 153 53 Watson V. Dealy, 28 Misc. 544, 59 N. Y. Supp. 623 65, 86 Watts-Woodward Press, In re, 181 Fed. 71 94 W. B. Cole, The, 59 Fed. 182 195 Weber v. Sampson, 6 Duer 358 197, 198 Weed V. Covill, 14 Barb. 242 148 Weil V. Pevy, 80 Hun 382, 30 N. Y. Supp. 127 *. . 177 Weiss V. Leichter, 113 N. Y. Supp. 999 212, 217 Wellington v. Morey, 12 Week. Dig. 476 8, 148 Westcott V. Gunn, 4 Duer 107 48, 77, 180 Westchester Trust Co. v. Hobby Bottling Co., 102 App. Div. 464, 92 N. Y. Supp. 482 37, 63 Westinghouse Elec. & Mfg. Co. v. New Paltz, etc., Traction Co., 32 Misc. 132, 65 N. Y. Supp. 644 228 Weston V. Wright, 1 Eob. 312 197, 198 West Publishing Co. v. Gluck, 92 Misc. 198, 155 N. Y. Supp. 514 246 Wheeler v. Eastwood, 88 Hun 160, 34 N. Y. Supp. 513 , 9 Wheeler v. Newbound, 16 N. Y. 392 19 Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. 236, 21 N. Y. Supp. 1006. . . 235 White V. Gray's Sons, 96 App. Div. 154, 89 N. Y. Supp. 481 241, 242 White's Bank v. Smith, 7 Wall (U. S.) 646 194 Whitman v. Conner, 8 J. & S. 339 54 Wild V. Porter, 59 App. Div. 350, 69 N. Y. Supp. 839 64, 88 Wilder v. Stewart, 21 Week. Dig. 93 167 Wiles V. Clapp, 41 Barb. 645 97, 99, 100 / Table of Cases Cited. xlix [References are to pages.] Willcox V. Perez, 115 App. Div. 693, 101 N. Y. Supp. 391 161, 162 Williston V. Jones, 6 Duer 504 110, 115, 117 Wilson V. Little, 2 N. Y. 443 16, 17, 19 Wintermute v. Light, 46 Barb. 278 32 Wise V. Ryder, 34 N. Y. Supp. 782, 68 St. Rep. 716 109, 115, 117 Wismer v. Ocumpaugh, 71 N. Y. 113 22, 28 V;"is?er v. O'Brien, 3 J. & S. 149 94 Witherbee v. Taft, 51 App. Div. 87, 64 N. Y. Supp. 347 72, 79, 82, 105 W. J. Floyd & Co., In re, 19 Am. B. R. 438, 156 Fed. 206 205 Wolff V. Rausch, 22 Misc. 108, 48 N. Y. Supp. 716 99, 149 Wood V. Lester, 29 Barb. 145 30, 35 Wood V. Lowry, 17 Wend. 492 10.7, 109 Woodbridge v. Nelson, 6 Week. Dig. 248 4, 151 Woodburn v. Chamberlin, 17 Barb. 446 84 Woodman v. Needham Piano & Organ Co., 47 Mise. 683, 94 N. Y. Supp. 371 247 Woodworth v. Hodgson, 56 Hun 236, 9 N. Y. Supp. 750 8 Wooster v. Sherwood, 25 N. Y. 278 82 Wray v. Federke, 11 J. & S. 335 69, 99, 100, 148 Wright, In re, 2 Am. B. R. 364, 96 Fed. 187 200 Wuertz V. Braun, 122 App. Div. 433, 107 N. Y. Supp. 429 158 W. W. Mills Co., In re, 20 Am. B. R. 501, 162 Fed. 42 205 Yates V Olmstead, 56 N. Y. 632 28, 29 Yates V. Olmstead, 65 Barb. 43 115 Yenni v. McNamee, 45 N. Y. 614 6 Zartman v. First Nat. Bank, 189 N. Y. 267 lOS, 115, 125 Zeiter v. Bowman, 6 Barb. 133 176, 177, 178 Zimmer v. Hays, 8 App. Div. 34, 40 N. Y. Supp. 3.97 117 Zimmer v. Wheeler, 2 St. Rep. 325 77, 82, 84 Zoeller v. Riley, 100 N. Y. 103 120 PART I CHATTEL MORTGAGES CHAPTER I. NATURE OF CONTRACT. ^ Sec. 1. Derivafion of Term "Mortgage." 2. Definitions. 3. Different from Real Estate Mortgage. 4. Incidental to Debt. 5. Title of Parties. a. Before Default. b. After Default. Sec. 1. Derivation of Term " Mortgage." The term " mortgage " is derived f^om two French words ; moH meaning dead, and gage meaning pledging.^ The term mortuum vadium was also used in early times to designate the transaction now commonly called a mortgage. These terms were used for two reasons. First: To distinguish the transaction from the vivum vadium, or living pledge; where a debtor, who borrowed money, transferred an estate to his creditor, to be held by the latter until he had repaid himself out of the issues and profits of the estate. In such a case, the estate was never lost or dead to the debtor.^ The second reason is thus stated by Littleton : — " It seemeth that the reason why it is called mortgage is, that it is doubtful whether the f eoflfer will pay, at the day limited, such sum or not ; and if he doth not pay, then the land, which is put in pledge upon condition, for the payment of the money, is taken from him forever, and so dead to him upon condition." ^ 1. Breese v. Bange, 3 E. D. Smith 2. Coke Littleton, 205-a. 474, 486. 3. Littleton, § 332, lib. 3, chap. 5. 2 Chattel Mortgages. Sec. 2. Definitions. A chattel mortgage is an instrument by which the title to per- sonal chattels is transferred to a mortgagee as security for the pay- ment of a debt, or for the performance of an obligation, with a condition that upon payment or performance, the title shall revest in the mortgagor; but if the debt is not paid, or the obligation is not performed, the title becomes absolute in law in the mortgagee, though redeemable in equity.* Sec. 3. Different from Real Estate Mortgage. There is a manifest difference between a mortgage of real and a mortgage of personal property. The former is merely a security for the debt; the mortgagee has only a chattel interest, and the freehold remains in the mortgagor. A chattel mortgage, however, is more than a mere lien or security. By the latter the legal title to the property is transferred, subject to be defeated by the pay- ment of the mortgage debt.° Sec. 4. Incidental to Debt. A chattel mortgage is but an accessory or incident to the debt. The debt and the mortgage cannot be separated. The mortgage 4. Streeter v. Ward, 12 St. Rep. 333. A personal mortgage is more than See also Wait's Law and Practice a mere security. It is a sale of the (7th ed.), vol. 1, p. 60. thing mortgaged and operates as a Other Definitions. — "A chattel transfer of the whole legal title to mortgage is a present transfer of the the mortgagee, subject only to be de- title to the property mortgaged, sub- feated by the full performance of ject to be defeated on payment of the the condition. Butler ». Miller, 1 sum or instrument it is given to N. Y. 496. secure. In default of performance A mortgage is a sale of goods with by the mortgagor of the condition, a condition that, if the mortgagor the title of the mortgagee becomes pays, it shall be void. Lewis v. absolute." Parshall v. Eggart, 54 Graham, 4 Abb. Pr. 106; Brownell v. N. Y. 18. Hawkins, 4 Barb. 491. " The idea of a chattel mortgage 5. Rogers v. Traders' Ins. Co., 6 'is that of a conveyance of personal Paige 583 ; Butler v. Miller, 1 N. Y. property to secure the debt of the 496; People v. Remington & Sons, 58 mortgagor; which, being conditional Hun 282, 12 N. Y. Supp. 824, a^'d, at the time, becomes absolute if, at a 126 N. Y. 654, mem.; Noyes v. Wyck- fixed time, the property is not re- off, 30 Hun 466, ofd, 114 N. Yt deemed." Rochester Distilling Co. 284. V. Rasey, 142 N. Y. 570. Nature ~ of Conteact. 3 cannot exist as an independent debt. If the debt is assigned and the mortgage, by special agreement, does not accompany the debt, the mortgage is ipso facto extinguished and ceases to be a sub- sisting demand.* Sec. 5. Title of Parties. a. Before Default. — Before default in the condition of the mortgage, the legal title to the mortgaged chattels is in the mort- gagee. But his title is conditional and liable to be defeated by a performance of the conditions. On such performance the title revests in the mortgagor the same as before the execution of the instrument.^ But while this is so technically and theoretically, yet practically, the substantial title remains in the mortgagor with all the incidents of a legal title. He retains the use, control and benefit of the property subject to the mortgage. When entitled to possession before default, he can exercise many powers which ordinarily accompany the legal title to property. He may main- tain an action for conversion against any wrongdoer taking the property even against the mortgagee;* he may sell the mortgaged 6. Langdon v. Buel, 9 Wend. 80. payment of the debt to secure which 7. Bank of Rochester v. Jones, 4 the title has been transferred, and N. Y. 497; Bleakley v. Sullivan, 140 thus revest himself with the title. N. Y. 175; Stearns v. Oberle, 47 Misc. Olcott v. Tioga R. Co., 40 Barb. 179, 349, 94 N. Y. Supp. 37; Gore v. af'd, 27 N. Y. 546. Glover, 49 Misc. 473, 97 N. Y. Supp. The title of the mortgagee becomes 969 ; Matthews v. Victor Hotel Co., absolute only upon default in the per- 132 N. Y. Supp. 375; Stoddard V. formance of the condition. Miner v. Denison, 7 Abb. Pr., N. S., 309, 38 Judson, 2 Hun 441. How. Pr. 296 ; Olcott v. Tioga R. Co., Mortgage to Secure Surety.— Where 40 Barb. 179, aff'd, 27 N. Y. 546; one takes title simply to secure him- Porter v. Parmley, 43 How. Pr. 445, self against loss as surety upon a 13 Abb. Pr., N. S., 104, rev'd on other bond, he has no interest that he can grounds, 52 N. Y. 185. sell until after a breach in the con- A mortgagee under a chattel mort- dition of the bond. His title is both gage takes title at once to the mort- personal and contingent, and by an gaged chattels and retains it unless assignment before the contingency his title is divested by payment. named has happened, he parts with Stearns V. Oberle, 47 Misc. 349, 94 N. his security without transferring any Y. Supp. 37. right to his assignee. Comley v. A mortgage transfers to the mort- Dazian, 114 N". Y. 161. gagee the legal title to the property, 8. Moore v. Prentiss Tool and Sup- and all that remains in the mort- ply Co., 133 N. Y. 148. See infra, gagor is the mere right of redemption the subdivision Aotion at Law — — a right to defeat the sale, by the Against Mortgagee, p. 128. 4 Chattel Moetgages. property and convey a good title subject to the mortgage;® and, in many cases, the property may be seized and sold by virtue of an execution against him.^° b. After Default. — Upon default in the payment of a chattel mortgage, by operation of law, the title of the mortgagee to the mortgaged property becomes absolute, and the mortgagor has no interest therein except a right to redeem — a mere right of action — enforceable only in a court of equity.^^ It is not necessary that a chattel mortgage declare that the defeasible title of the mortgagee vs^ill become absolute on the failure of the mortgagor to pay the sum when it becomes due ; this result follows as an incident 9. See infra, the subdivision Trans- fer of Property, p. 126. 10. See mfra, the subdivision Levy Upon Mortgaged Chattels, p. 163. 11. West V. Gra/ry, 47 N. Y. 423; Porter v. Parmley, 52 N. Y. 185; Judson ■». Easton, 58 N. Y. 664; Bragelman v. Dane, 69 N. Y. 69; Casserly v. Witheibee, 119 N. Y. 522; Kimball v. Farmers & Mechanics' Nat. Bank, 138 N. Y. 500 ; Barrett Mfg. Co. V. Van Ronk, 212 N. Y. 90 ; Stew- art 13. Beale, 7 Hun 405, affd, 68 Jf. % 329, mem.; People V. Remington & Sons, 59 Hun 282, 12 N. Y. Supp. 824, aff'd, 126 N. Y. 654, mem.; Dar- row V. Wendelstadt, 43 App. Div. 426, 60 N. Y. Supp. 174; Cartier v. Pabst Brewing Co., 112 App. Div. 419, 98 N. Y. Supp. 516; Schmidt v. Weeks, 142 App. Div. 83, 127 N. Y. Supp. 39; Kraus v. Black, 56 Misc. 641, 107 N. Y. Supp. 609; Saratoga Holding Co. v. Washburni 70 Misc. 110, 127 N. Y. Supp. 1016; Phenix Nat. Bank v. Cleveland Co., 11 N. Y. Supp. 873, 34 St. Rep. 498; Fidelity- Loan Assoc. V. Connolly, 92 N. Y. Supp. 252; Niccloy v. Treasure, 115 N. Y. Supp. 1030; Farmers' Bank of Washington County v. Cowan, 2 Abb. Dec. 88, 2 Keyea 217; Stoddard v. Denison, 7 Abb. Pr., N. S., 309, 38 How. Pr. 296; Dane v. Mallory, 16 Barb. 46; Talman v. Smith, 39 Barb. 390; Ackley v. Finch, 7 Cow. 290; Burdick v. McVanuer, 2 Denio 170; Porter v. Parmley, 43 How. Pr. 445, 13 Abb. Pr., N. S., 104 rev'd on other grounds, 52 N. Y. 185; Powers v. Elias, 21 J. & S. 480; Halstead v. Swartz, 1 T. & C. 559, 46 How. Pr. 289; Woodbridge v. Nelson, 6 Week. Dig. 248 ; Patchin v. Pierce, 12 Wend. 61. Without Possession. — Upon default, the absolute title vests at once with- out possession in the mortgagee, and all the mortgagor has left is an equity of redemption. Saratoga Holding Co. ,v. Washburn, 70 Misc. 110, 127 N. Y. Supp. 1016. The mortgagor retains an insurable interest in the mortgaged property, although he has disposed of the equity of redemption absolutely, so long as he is personally liable for the payment of the mortgage debt. By disposing of the property subject to the mortgage, it becomes the pri- mary fund for the payment of the mortgage debt. The loss of the prop- erty, therefore, would be a direct loss to the mortgagor, who is person- ally responsible for the payment of the debt. Buffalo Steam Engine Works V. Sun Mutual Ins. Co., 17 N. Y. 401, Natttee of Cowteact. 5 to the relation of the parties/^ The mortgagee, upon default, becomes the general owner of the mortgaged property;'* and, as far as the legal rights of the parties are concerned, he may treat the property as his own and squander, destroy, or give it away.'* The mortgagee, by selling the property, transfers to the purchaser a good legal title.'^ The mortgagor, if permitted to retain posses- sion of the property, holds merely as a bailee for the mortgagee.'" 12. Bragelman v. Dane, 69 N. Y. 69. 13. Casserly v. Witherbee, 119 N. Y. 532. 14. People V. Remington & Sons, 59 Hun 282, 12 N. Y. Supp. 824, aff'd, 126 N. Y. 654, mem.; Porter v. Parm- ley, 43 How. Pr. 445, 13 Abb. Pr., N. S., 104, rev'd on other grounds, 52 N. Y. 185. 15. Rogers v. Traders' Ins. Co., 6 Paige 583. Sale. — Upon the failure of a mort- gagor to perform the condition of the mortgage, the title at law becomes absolute in the mortgagee or his as- signs and he or they may sell the property at public or private sale; especially as against strangers. Dane V. Mallory, 16 Barb. 46. Prime Facie the Absolute Owner. — One purchasing the mortgaged prop- erty from the mortgagee and taking possession after the forfeiture of the condition, at a time when there is no creditor in position to object to the sale, and continuing his posses- sion, is to be deemed, prime facie, the absolute owner. Talman v. Smith, 39 Barb. 390. 16. Fidelity Loan Assoc, v. Con- nolly, 92 N. Y. Supp. 252. Chattel Moetgages. CHAPTER II. DISTINGUISHED FROM OTHER CONTRACTS. Sec. 1. In General. 2. Sale. 3. Construction of Bill of Sale as Mortgage. 4. Conditional Sale. a. In General. b. Reservation of Title Until Payment. c. Sale and Conditional Resale. 5. Pledge. a. In General. b. EflFect of Use of Term " Pledge." c. Delivery of Stocks, Bonds, etc., as Security. 6. Agreement to Give Mortgage. 7. General Assignment. 8. Assignment in Trust. 9. Lease Reserving Lien. Sec. 1. In General. The characteristic which distinguishes a chattel mortgage from other instruments is the condition that, if the deliit is paid at the day specified, the conveyance is void, but, if payment is not so made, the transfer becomes absolute at law.^ The instrument need 1. Parshall v. Eggart, 52 Barb. 367, livered to B.; the defendant, having r&v'd on other grounds, 54 N. Y. 18; paid the note, took the horse. In an Breese v. Bange, 2 E. D. Smith 474. action by the administrator of C. to Transaction, Held Not a Mortgage, recover the horse, it was held that the — In Ceas v. Bramley, 18 Hun 187, agreement vras not a mortgage as it appeared that the defendant B., be- there was no absolute sale defeasible ing a surety upon a note given by C, upon condition, and that no title to the plaintiff's intestate, to one M., the horse was thereby transferred agreed, after the maturity of the note, to the defendant, to remain liable as surety for one Instrument Held a Chattel Mort- year longer and C. agreed to turn gage Between Certain Parties. — In over to him a horse and, in case B. Yenni v. MeNamee, 45 N. Y. 614, it had to pay the note, the horse was appeared that one S. was the owner to be his property and he was to ha^e and in the possession of a quantity of the right to take it; the horse was petroleum; his superintendent signed not present at the time this agree- and delivered to him the following ment was made, nor was it ever de- instrument: "Received on storage Distinguished i-kom Othee Conteacts. not, in express terms, state that the mortgagee may take the goods.* Nor need the mortgagor promise to pay the debt secured, or be liable for its payment/ Sec. 2. Sale. A mortgage is one kind of a sale; it is a sale with a condition, the condition being that title shall revest in the mortgagor upon payment being made according to the terms of the contract. It is that condition 'which distinguishes a chattel mortgage from an absolute bill of sale.* If a conveyance is taken as security it is a mortgage or pledge, but if taken in payment or part payment, thus extinguishing the debt, in whole or in part, it is a sale."* A bill of sale, absolute on its face, but accompanied by an agreement. for account of S., 600 barrels petrole- um, crude and refined, contained in tanks, and 700 barrels to hold the same, deliverable to his order on pay- ment of the charges named therein, in accordance with the marginal note below. Storage, per month. Labor, ." No oil was set apart as covered or described by this re- ceipt. The instrument was trans- ferred by S. to B. for full value, as collateral security for a loan, the property all the while remaining at the factory. It was held that the in- Btrument, as between S. and B., was in the nature of a chattel mortgage. 2. Blake v. Corbett, 120 N. Y. 327. 3. Matthews v. Sheehan, 69 N. Y. 585; Blake v. Corbett, 120 N. Y. 327. Assignment, Held a Mortgage. — Where one defendant by the name of Crowley was indebted upon certain promissory notes, and another defend- ant, by the name of Corbett, executed and delivered to the plaintiff the fol- lowing instrument: "For value re- ceived, I, Isabella Corbett, do hereby sell and assign the above mentioned books and described books to Henry A. Blake, his heirs and assigns, I to hold and retain possession of said books for eight months from this sale, and if, during that period, the sum of indebtedness to said Blake, now ow- ing to him by Bichard Crowley, is paid or satisfied, for the payment of which this assignment is made as se- curity, then this conveyance shall be null and void," it was held that the instrument contained all the es- sentials of a chattel mortgage and could be foreclosed as such. Blake v. Corbett, 120 N. Y. 327. Assignment of Insurance Policy. — Where the plaintiff's testator pro- cured an insurance policy upon his life and assigned the same to the defend- ant under an oral agreement that the latter was to pay the premiums and have the benefits of the policy, the testator, however, to have the privi- lege of redeeming at any time by pay- ing the premiums advanced by the de- fendant with interest, it was held the assignment was a mortgage, to the validity of which it was not essential that the testator should have made an absolute promise to pay the ad- vances. Matthews v. Sheehan, 69 N. Y. 585. 4. Gore v. Glover, 49 Misc. 473, 97 N. Y. Supp. 969. 5. Keller v. Paine, 34 Hun 167, rev'd on other grounds, 107 N. Y. 83. 8 Chattel Moetgages. in writing or by parol, operating as a defeasance, is a mere mort- gage." A bill of sale with a separate defeasance is as clearly a mortgage as if the defeasance formed part thereof. Hence, where the owner of goods executes a bill of sale thereof and the vendee at the same time agrees to resell the property for the same sum and " deliver what remains of the property upon payment thereof," the transaction is a chattel mortgage.^ But the mere expectation on the part of the purchaser that the vendor will ultimately repur- chase the property does not change the sale into a chattel mortgage.' A bill of sale declaring that it is given to secure a debt and provid- ing that the vendee may sell the goods to satisfy the debt, the sur- plus to be returned to the vendor is a chattel mortgage.® An instrument, in the form of a bill of sale of chattels, in the i absence of evidence that there has been a bargain between the parties by which one should sell and the other buy them, where it appears that the party receiving the bill of sale has signed, but has not been obliged to pay negotiable paper for the accommoda- tion of the party giving the bill of sale, is to be treated as a chattel mortgage and must be filed in accordance with the statute in order to be valid against creditors.^" Thus, where a manufacturer pur- Transferee to Prepare Property secure the vendee aa surety for the for Sale. — Where an absolute bill of vendor, and that in case the vendee sale of property is given as security shall become liable, that he may turn for a debt, its effect as a chattel the goods out on execution, or that martgage is not avoided by a stipula- they shall be at his disposal at private tion that the transferee shall com- sale, accounting to the vendor for the plete the process of manufacturing proceeds, is in the nature of a mort- the assigned property and prepare the gage. Marsh v. Lawrence, 4 Cow. same for sale. Smith v, Beattie, 31 461. N. Y. 542. Instrument Giving Vendee Power to 6. Smith V. Beattie, 31 N. Y. 543 ; Sell Property. — A bill of sale of per- Sheldon i;. McFee, 316 N. Y. 618; sonal property, possession of which is CrOie'v. Glover, 49 Misc. 473, 97 N. Y. not surrendered, providing that the Supp. 969; Clark v. Henry, 8 Cow. person to whom the bill of sale is 334. given may sell the property covered 7. Dickinson v. Oliver, 96 App. Div. by it if the debt secured thereby is 65, 89 N.Y. Supp. 52; some cose, 195 ^^^ j^ ^o him within a certain N" Y 238 _ '■-,. ■ ' oi J. ». A T^- r.„ time, is, in legal effect, a chattel 8. Fisher v. Stout, 74 App. Div. 97, + ... ,' ^ , 77 N Y Supp 945 mortgage with a power of sale. Wel- 9. Bisaell ^,. Hopkins, 3 Cow. 166; ""gt"" ^- ^orey, 12 Week. Dig. 476, Marsh v. Lawrence, 4 Cow. 461 O'f'^, 90 N. Y. 656, mem. A bill of sale, or assignment of 10. Woodworth v. Hodgson, 56 Hun goods, declaring that the object is to 236, 9 N. Y. Supp. 750. Distinguished feom Otheb Contkacts. 9 chased wool to be paid for by his note indorsed by another per- son, for the accommodation of such manufacturer, and, at the time of such indorsement, the manufacturer executed to the indorser a writing reciting that the latter had indorsed the note to be used in purchasing the wool and declaring that the wool and the cloth to be manufactured therefrom should belong to such indorser until the note was paid, it was held that the transaction was a mere mortgage.^^ Where, upon the dissolution of a partnership, one partner exe- cuted to the other a bill of sale of his interest in the partnership property and the parties signed an agreement that the latter employed the former as his agent to sell the goods, the partner acting as such agent to retain the net profits for his services and to purchase the property by payments to be made in installments, it was held that the instrument executed by the partner acting as agent was in effect a chattel mortgage.^^ Where a person, upon obtaining $200 from another, told the latter she would return it if she could, or, if not, that she would sell certain property to him for $1,000, if he could make an arrangement, it was held that whether the transaction was an absolute sale or a chattel mort- gage was a question for the jury.^' Where an instrument recited that the first party named therein, in consideration of a specified sum paid to him, had bargained and sold to the second party cer- tain property, and that the property so transferred was in the possession of the first party, but the instrument contained no prom- ise or agreement to pay any sum of money to the second party, it was held that the instrument was a bill of sale and not a chattel mortgage.^* Although a bill of sale may be regarded as fraudulent if the property transferred greatly exceeds in value the amount of the consideration, such inadequacy of consideration does not affect the validity of a inortgage.^^ 11. Thompson v. Blanchard, 4 N. Y. 14. Wheeler v. Eastwood, 88 Hun 303. 160, 34 N. Y. Supp. 513. 12. Bragelman v. Dane, 69 N. Y. 69. 15. Preston v. Squthwick, 115 N. Y. 13. Goodwin v. Kelly, 42 Barb. 194. 139. 10 Chattel, Moetgages. Sec. 3. Construction of Bill of Sale as Mortgage. A bill of sale, absolute upon, its face, may be shown by parol evidence to be only a mortgage.^' ISTo matter what the form of the instrument is, if intended merely as security, it may be shown to be a mortgage and must be so treated." The mortgagor need not show fraud or mistake in the transaction.** He may have the bill of sale adjudged to be a chattel mortgage, though he claims 16. Despard v. Walbridge, 15 N. Y. 374; Smith v. Beattie, 31 N. Y. 543; West V. Crary, 47 N. Y. 433; Mat- thews V. Sheehan, 69 N. Y. 585; Coe V. Cassidy, 73 N. Y. 133; Barry v. Colville, 139 N. Y. 303; Susman v. Whyard, 149 N. Y. 137; Donnelly v. McArdle, 86 App. Div. 33, 83 N. Y. Supp. 193 ; Heise V. Selected Securities Co., 105 N. Y. Supp. 1079; Parmenter V. Fitzpatrick, 14 N. Y. Supp. 748, 38 St. Kep. 367, rev'd on other grounds, 48 St. Eep. 80; Tyler v. Strang, 21 Barb. 198; Patchin v. Pierce, 13 Wend. 61. Assignment of Contract. — Parol evidence may be given to show that an assignment of a contract absolute upon its face was intended as a mort- gage. Tyler v. Strang, 21 Barb. 198. An assignment of a lease may be shown by parol to be a mortgage; and where the assignee of a lease sues a subtenant of the original lessee for the rent, the subtenant may show that the assignment of the lease was merely as a security for a debt and that such debt has been paid. Des- pard V. Walbridge, 15 N. Y. 374. An assignment of a policy of life insurance, absolute on its face, may be shown by parol to have been given simply as security. Matthews v. Sheehan, 69 N. Y. 585. A conveyance of a patent may be shown to be merely as security for a debt. Barry v. Colville, 129 N. Y. 302. A bill of sale of a vessel, absolute in its terms, may be shown by parol evidence to be only a mortgage, though the bill of sale is recorded in the manner required for a transfer of a vessel and re-enrolled in the name of the transferee, and though an in- surance policy is taken out in his name as owner and no bond or note taken by him. Morgan v. Shinn, 15 Wall. (U. S.) 105. And see mfra, the chapter Mortgages on Vessels, p. 189. 17. Coe V. Cassidy, 73 N. Y. 133, 137. InsufScient Proof of Slortgage. — Where a bill of sale was executed in payment of a. precedent debt, the mere admission of the vendee, drawn from him by leading questions on cross-examination that the same was a " security for a debt," is not suffi- cient to fix the character of the in- strument as a mortgage. Prentiss Tool & Supply Co. V. Schirmer, 17 N. Y. Supp. 663, 45 St. Rep. 30. 18. Barry v. Colville, 139 N. Y. 303. But see Patchin v. Pierce, 13 Wend. 61. Effect of Failure to Prove Allega- tions of Fraud. — In an action to re- form a bill of sale as a chattel mort- gage, allegations in the complaint of false representations inducing the ex- ecution of the instrument may be dis- regarded as surplusage and the com- plaint will not be dismissed because the fraud is not proven. Ricketts v. Wilson, 36 Week. Dig. 193, 6 St. Eep. 508. Distinguished feom Other Conteacts. 11 ie did not know at the time he signed it that it was absolute in fonn.^° Even if the mortgagor concedes that he intended to exe- cute an instrument absolute in form, if it was understood between the parties that the bill of sale was to be held only as security, the mortgagor may have such relief.^" He should, however, explain satisfactorily why the instrument was drawn in the form of an absolute sale.^^ A chattel mortgage, however, cannot operate as an absolute sale. The mortgagor's equity of redemption is zealously guarded by the courts and no agreement in a mortgage will be allowed to change it into an absolute conveyance upon any condition or event. There is no exception to the rule, " once a mortgage, and always a mortgage." "^ Sec. 4. Conditional Sale. a. In General. — The term " conditional sale " is somewhat vague, for there are many kinds of conditional sales. A chattel mortgage is one kind. Another kind, the one commonly called a " conditional sale," arises where the vendor of property reserves the title thereto until the payment of the purchase price. But, as sales may be conditioned upon the happening of other events, numerous classes of conditional sales may arise. Generally a chattel mort- gage is easily distinguished from the foregoing classes of condi- tional sales; but a question of serious difficulty is presented in distinguishing between a chattel mortgage and the transaction which is sometimes termed a " sale and conditional resale." In this latter transaction, the owner of property sells the same, and the purchaser agrees, upon the performance of some condition by the original vendor, to resell the same to such vfendor. b. Reservation of Title Until Payment. — The purchase price of an article sold may be secured in either of two ways: first, by a conditional sale through which the title is 19. Donnelly v. McArdle, 86 App. The reason of the rule is, because it Div. 33, 83 N. Y. Supp. 193. puts the borrower too much in the 20. Donnelly v. McArdle, 86 App. power of the lender, who, being dis- Div. 33, 83 N. Y. Supp. 193. tressed at the time, is generally too 21. Donnelly v. McArdle, 86 App. much inclined to submit to any terms. Div. 33, 83 N. Y. Supp. 193. Clark v. Henry, 3 Cow. 324. 22. Clark v. Henry, 2 Cow. 324. 12 Chattel Moetgageb. reserved in the vendor until the purchase price is paid; second, by a chattel mortgage given back by the purchaser. While the object to be accomplished by either form of security is substantially the same, the rights of the parties under the two forms of security are materially different.^* Upon the execution of a conditional sale of this class, the vendee has no title to the property, but, if the instrument is to be construed as a chattel mortgage, it is neces- sary that title should have passed from the mortgagor, who, by the instrument, vests the legal title in the mortgagee, subject to the usual rights of the mortgagor.^* The instrument may be a condi- tional sale though it contains a clause that the vendor, in case of default in payment by the vendee, may take and sell the prop- erty and apply the proceeds to the balance unpaid, paying the surplus, if any, to the vendee.^^ A provision in the contract that the vendee is to have fult ownership when he performs the condi- tions of the contract, and a provision that he takes possession as " tenant or bailee," are inconsistent with the idea of a transfer of actual title and generally require the instrument to be con- strued as a conditional sale.^® Likewise, a provision in the agree- ment, that, when the price is paid in full, a bill of sale of the property will be given, is inconsistent with a claim that the title passed when the agreement was made.^^ The use of the term " sell '■' does not necessarily import an executed contract.^* Where one D. G. Skinner purchased certain property of third parties and transferred it to E. & H. G. Gulick, the parties execut- ing the following instrument : " E. and H. G. Gulick agree to pay D. G. Skinner, for the above machines and belting, time, services and expenses, the sum of $810.75, within five months, and D. G. Skinner agrees to take the above amount, as above stated, but lends to said Gulicks the property above stated ; and if they fail to pay, he is at liberty to take the property away, to enable him to realize the amount and interest, Prattsburgh, 23. Tweedie v. Clark, 114 App. Div. 25. Brewster v. Baker, 20 Barb. 364. 3%, 99 N. Y. Supp. 856; Gaul v. 26. Boon «. Moss, 70 N. Y. 465. Goldburg Furniture & Carpet Co., 85 27. Fennikoh v. Gurm, 59 App. Div. Misc. 426, 147 N. Y. Supp. 516. 133, 69 N. Y. Supp. 13. 24. Tweedie v. Clark, 114 App. Div. 28. Fennikoh v. Gunn, 59 App. Div. 296, 99 N. Y. Supp. 856; Gaul v. 132, 69 N. Y. Supp. 12. Goldburg Furniture & Carpet Co., 85 Misc. 436, 147 N. Y. Supp. 516. Distinguished peom Othee Conteacts. 13 March 29, 1852. (Signed) E. & H. G. Gulick, D. G. Skinner; " it was lield that the instrument was a conditional sale, not a chattel mortgage.^' Where the lessee of a hotel, who was the owner of the furniture therein, leased the hotel and furniture to another person for the remainder of his term and the suh-lessee agreed to keep the furni- ture insured and not to sell it or permit it to be moved, and the original lessee agreed to sell the furniture to such person at the expiration of the term if he fulfilled his covenants, and reserved the right to re-enter upon default and take possession of and sell the furniture, retaining from its proceeds the rent due him, and paying over the surplus to such sublessee, it was held that the trans- action was a conditional sale.^° Where the holder of an instrument treats it as a conditional sale by retaining the property for thirty days and selling the same pursuant to the provisions of the Personal Property Law (§§ 65 et seq.), he cannot afterward claim that the contract is a chattel mortgage and not a conditional sale.'^ c. Sale and Conditional Resale. — It is sometimes difficult to determine whether a transaction consitutes a mortgage or an absolute sale and a conditional resale; and whether it shall be construed to be one or the other depends upon the intention of the parties as evidenced by the instrument executed, and all the cir- cumstances of the case. In all doubtful cases a contract will be construed to be a mortgage rather than a conditional sale, because, in the case of a mortgage, the mortgagor, although he has not strictly complied with the terms of the mortgage, still has his right of redemption ; while in the case of a conditional sale, with- out strict compliance, the rights of the conditional purchaser are forfeited.^^ No general rule to distinguish the transactions can 29. Grant V. Skinner, 21 Barb. 581. stitutes a mortgage or a, conditional 30. Bean v. Edge, 84 N. Y. 510. sale is the intention of the parties to 31. Powers v. Burdick, 136 App. be ascertained either from the terms Div. 179, 110 N. y. Supp. 883. of the written contract or 'in proper 32. Matthews v. Sheehan, 69 N. Y. cases from that instrument considered 585. in connection with the circumstances Intention of Parties. — The only attending its making. Hughes v. Har- safe criterion by which to determine lam, 166 N. Y. 427, 431. whether a particular transaction con- 14 Chattel Moetgages. te laid down. The fact that there is no debt which can be person- ally enforced is a strong but not an absolutely controlling cir- cumstance that the transaction is not a mortgage.*^ The relative value of the property and the price actually advanced or paid are to be taken into consideration to determine the intent of the parties.^* It has been held that, in the absence of evidence of the inadequacy of the consideration, and of any personal liability of the vendor to refund, in any event, the money received as the price of the transfer, the covenant will be treated as a conditional sale.^^ Where the instruments of sale and conditional resale are merely security for a debt owing by the original vendor, the clause of resale is generally construed as a defeasance and the transaction is a chattel mortgage.*" The fact that the term " resale " is employed will not change the transaction when no other sum than the amount of the indebtedness is mentioned or contemplated as the price of such resale.^^ Where the agreement is made upon an application for a loan of money, the court, for the purpose of pre- venting usury and extortion, will construe the agreement to be a mortgage.** An agreement transferring personal property subject to the condition that if the transferor pays the amount due upon a certain promissory note the transfer shall be void, but in the event of his death before payment, it shall become unconditional and absolute, the primary object of which was to provide security for a loan made to him, is a mortgage and not a conditional sale, and upon his death before the payment of the loan, his personal representa- tive may redeem notwithstanding the provision for an absolute transfer, as such provision is void.** Where a debtor on promissory notes to the amount of $225 executed to his creditor an assignment of a mortgage held by the debtor against a third party for $1,065.03, and the notes were 33. Matthews v. Sheehan, 69 N. Y. 195 N. Y. 238; Susman v. Whyard, 585. See also Gomez v. Kampling, 4 149 N. Y. 187; Robinson v. Cropsey, Daly 77. 6 Paige 480. 34. Robinson v. Cropsey, 6 Paige 37. Susman v. Whyard, 149 N. Y. 480. 127. 35. Quirk v. Rodman, 5 I>uer 38. Robinson v. Cropsey, 6 Paige 285. 480. 36. Dickinson v. Oliver, 96 App. 39. Hughes v. Harlam, 166 N. Y. Div. 65, 89 N. Y. Supp. 52; same case, 427. Distinguished feom Othee Cohteacts. IS destroyed, and the creditor thereupon executed to the debtor a writing by which he promised to sell the mortgage to the debtor, if he would pay the $225 by a certain day, and it appeared that the creditor several times before the day of payment declared that he held the assignment as security for his debt, it was held that the assignment was a mortgage and not a conditional sale.*" Where a debtor gave his creditors a bill of sale of certain goods for the amount due, and, while retaining the possession of the goods, gave such creditors a storage receipt, acknowledging that he held the property for them, and it was verbally agreed that the debtor might have the goods again by paying the debt in a specified time, it was held that the transaction was a conditional sale, not a mortgage of the goods.*^ Where a mortgagee, who was the landlord of a farm leased to the mortgagor, took possession of the property under the chattel mortgage and shortly afterward the mortgagor transferred his equity to the mortgagee, and four days thereafter the mortgagee agreed to give the original mortgagor an option to repurchase the property in two years, under which arrangement all the hay cut and crops raised upon the farm were to be and remain the property of the landlord, it was held that the latter agreement was not a chattel mortgage required to be filed as the title was previously in the landlord and was merely reserved there by the agreement.*^ Where one tenant in common sold to his co-tenant his undivided share in the common property in consideration of the discharge of previous debts, and it was agreed that the vendee should convey to the vendor the whole property held in common, upon the payment of a specified sum at the end of one year, together with the value of the improvements made in the meantime, it was held that the transaction was a valid agreement of sale and repurchase and not a mere mortgage/^ When the owner of a bond and mortgage, made by a third per- son, applies to another to make a loan on the security thereof, but the latter refuses to do so, but purchases them, at less than their face, and takes a transfer which recites a sale, at a sum named, and conveys them in pursuance thereof, the transaction will not 40. Clark v. Henry, 2 Cow. 324. 30 N. Y. Supp. 91, aff'd, 150 N. Y. 41. Gomez v. Kamping, 4 Daly 562, mem. 77. 43. Robinson v. Cropsey, 6 Paige 42. Hawkins v. Beakes, 80 Hun 392, 480. IS Chattel Moetgages. be treated as being, in effect, a mortgage, merely because the pur- chaser gives his covenant to the vendor, to resell them to the latter, ■within a time named, and on conditions specified.** Sec. 5. Pledge. a. In General. — There are two vital considerations which aid in distinguishing between a chattel mortgage and a pledge. First, in a chattel mortgage the legal title to the mortgaged property is transferred, but in a pledge the legal title is not generally thus transferred, the pledgee taking merely the right to retain the property as security for the indebtedness.*" Second, in a chattel mortgage, the possession of the property may or may not be in the mortgagee, but, to construe the transaction as a pledge, it is essen- tial that the pledgee have possession.*" 44. Quirk v. Bodman, 5 Duer 285. 45. Wilson v. Little, 2 N. Y. 443; People V. E. Bemington & Sons, 59 Hun 282, 12 N. Y. Supp. 824, aff'd, 126 N. Y. 654, mem.; Tedesco V. Op- penheimer, 15 Misc. 522, 37 N. Y. Supp. 1073; Lewis V. Graham, 4 Abb. Pr. 106; Huntington v. Mather, 2 Barb. 538, 6 N. Y. Leg. Obs. 206; Campbell v. Parker, 9 Bosw. 322; Cortelyou v. Lansing, 2 Cai. Cas. 200 ; Schoenrock v. Farley, 17 J. & S. 302 ; Breese v. Bange, 2 E. D. Smith 474; McFarland v. Wheeler, 26 Wend. 467. The leading difference between a pledge and a mortgage is that the former is security for the payment of debt, while the latter is a conditional sale which becomes absolute by non- performance of the condition, which requires payment of a. specified sum at a fixed day. Haskins v. Kelly, 1 Abb. Pr., N. S., 63, 24 Super. Ct. (1 Bob.) 160. "A mortgage of goods is a pledge and more; for it is an absolute pledge to become an absolute interest, if not redeemed at the specified time. After the condition forfeited, the mortgagee has an absolute interest in the thing mortgaged; whereas a pawnee has but a special property in the goods to de- tain them for his security." Brown V. Bement, 8 Johns. 96, 97. " A mortgage is a sale of goods with a. condition that if the mortgagor pays, it shall be void. A pledge con- tains no words of sale, but an au- thority, if the debt is not paid, to sell the pledge for that purpose. In the one case the title passes to the mort- gagees; in the other, the title remains in the pledgor, although possession is given to the pledgee." Lewis v. Gra- ham, 4 Abb. Pr. 106. 48. People v. E. Bemington & Sons, 59 Hun 282, 12 N. Y. Supp. 824, aff'd, 126 N. Y. 654, mem.; Canton, etc., Dental Co. v. Webb, 16 N. Y. Supp 932; Huntington ■». Mather, 2 Barb. 538, 6 N. Y. Leg. Obs. 206; Brownell V. Hawkins, 4 Barb. 491 ; Campbell v. Parker, 9 Bosw. 322; Cortelyou «, Lansing, 2 Cai. Cas. 200; Barrow v, Paxton, 5 Johns. 258; McFarland v. Wheeler, 26 Wend. 467. "The essential difference between them as a matter of right, is that ir the one case the title passes, and ii the other it does not. But the dif- ference in substance and fact, is tha' in the case of a pawn or pledge, thi Distinguished feom Other Contbacts. 17 But these two distinctions do not conclusively dispose of the question whether a particular instrument is a mortgage or a pledge. In the case of a pledge, at least of intangible property, the title may pass to the pledgee.*' The test of possession is useful only when possession is retained ; when the possession accompanies the instrument it may be either a mortgage or a pledge.** Other characteristics distinguishing a ple(%e and chattel mort- gage have been suggested. Thus, it has been said that one ground of distinction is that a pledge may be constituted without any con- tract in writing.** But this consideration is without force, for a verbal chattel mortgage is, in many cases, valid."" Another distinguishing feature has been advanced to the effect that in a pledge the debt exists independently."^ There seems to be no ground for such a distinction."* An instrument declaring that property mentioned therein is held by the person signing the same in his store for the account of other persons, subject to their order, as security for his note given that day for a specified sum, is not a chattel mortgage. If the property is delivered with the instrument, it may be a pledge, but when it is not delivered, it is nothing more than a contract for a pledge, which may become effectual as a pledge by a subsequent delivery of the property."' An assignment of a chattel mortgage as collateral security for a debt other than that covered by the mortgage itself amounts to a pledge of the mortgage and invests the pledgee with only a special property in the chattels mortgaged. Such a pledgee after default in the payment of the mortgage, the mortgagee being unable to deliver the chattels, is only entitled to recover the amount due under the mortgage although the chattels are of a greater valua"'* Where property was delivered by the owner to his creditor, as security for a debt and lan Instrument was executed by the debtor by which he agreed that if he did not return by a certain time to possession of the articles must pass 50. Terwilliger v. Ontario, Carbon- out of the pawner; in the case of a dale, etc., R. Co., 149 N. Y. 86; mortgage it need not. And in de- Powers v. Freeman, 2 Lans. 127 ; Ceas termining whetheir an agreement iS' a v. Bramley, 18 Hun 187; Bardwell v. pledge or a mortgage, regard must be Roberts, 66 Barb. 433. had to these two considerations." 51. See Haskins «. Kelly, 1 Abb. Haskins v. Patterson, 1 Edm. Sel. Cas. Pr., N. S., 63, 1 Rob. 160. 120, 122. 52. See infra, the subdivision Ac- 47. Wilsoii V. Little, 2 N. Y. 443. tion to Recover Debt, p. 146. 48. Huntington v. Mather, 2 Barb. 53. Parslhall v. Eggart, 54 N. Y. 18. 538, 6 N. Y. Leg. Obs. 206. 5Sa. National Nassau Bank v. 49. People v. E. Remington & Sons, Cleary, 171 App. Div. 540. 69 Hun 282, 12 N. Y. Supp. 824, affd, Cleary, 171 App. Div. 540, 157 N. Y. 126 N. Y. 654, mem. Supp. 696. 18 Chattel Moetgages. pay the debt, the creditor might dispose of the property to pay the demand, it was held that the transaction was a pledge of the property, not a mortgage.^* But where a person gave to another a regular bill of sale of certain horses for a consideration of $210, and the latter at the same time gave to the former a writing or defeasance, engaging, on the payment of such sum in 14 days, to deliver the horses to him, it was held that the arrangement was a mortgage."" Where one obtained a loan from a trust company to purchase some electric cars, and agreed to store the cars in the name of the trust company until the loan was paid, it was (held that the trans- action was a niortgage, not a pledge.""* Where a person delivered a watch to another accompanied by the following instrument, it was held that the transaction was a mortgage, not a pledge: "New York, February 11th, 1867. I hereby agree to give up all claim to the watch, &c., if all claims due to you from me are not paid by the first of August, eighteen sixty-seven. Signed, James Poolman." "" The following instrument has also been held a mortgage, not a pledge: " Ilion, N. T., .9th April, 1885. H. D. Alexander, Cashier, National Mohawk Valley Bank, Mohawk, N. Y. Bought of E. Kemington & Sons, — 1,000 Lee rifles, 433 Cal,, A. B., 4 Boxes — $15,500. Above goods are sold to H. D. Alexander, Cashier, and are held by him, as collateral security to and for the payment of our note C, No. 10,151, dated April 9th, 1885, at three months from date to order of and indorsed by P. Remington for ten thousand dollars and all renewals of the same. Said rifles are stored in the warehouse at the N. Y. C. B. R. freight depot, Ilion, N. Y., contained in 50 cases, each case marked 'A' and covered by receipt No. 163. Signed by C. E. Mentz. E. Eemington & Sons. By E. Eemington, Tr." "' b. Ejfect of Use of Term " Fledge." — The mere use of the word " pledge " does not, of itself, determine that the instrument is a pledge."* Thus, where the chattel remained in the possession of a debtor, and an instrument given by him authorized the creditor to take possession thereof on non-payment of the debt, the instrument was held a chattel mortgage, although, instead of the ordinary terms of conveyance, it used the words, " I hereby pledge 54. Brownell v. Hawkins, 4 Barb. 57. People v. E. Remington & Sons, 491. 59 Hun 283, IS N. Y. Supp. 824, off'd, 55. Brown v. Bememt, 8 Johns. 96. 136 N. Y. 656, mem. 55a. Gandy v. Collins, 214 N. Y. 59. Langdon v. Buel, 9* Wend. 80; 803. Haskins v. Patterson, 1 Edm. Sel. Cas. 5G. Bunaeleugh v. Poolman, 3 Daly 120. See also Ferguson v. Furnace 836. Co., 9 Wend. 345. DlSTIITGUISHED FEOM OtHEE CONTRACTS. 19 and give a lien on." '® But where the word " pledge " is used ajid the possession of the property is transferred, the instrument wiU generally be deemed a pledge.*" c. Delivery of StocJcs, Bonds, Etc., as Security. — Where stocks, bonds, mortgages, or other valuable choses in action are trans- ferred by a debtor to his creditor, as security for a debt, the trans- action is generally a pledge.*^ But a chose in action may be the subject of a mortgage and where the legal title thereto is trans- ferred subject to the right of the debtor to pay the debt and redeem, the transaction may be a mortgage.*^ Sec. 6. Agreement to Give Mortgage. Where property is delivered to vendees thereof under an agree- ment that they shall give the vendor a chattel mortgage thereon to secure the purchase price thereof, such arrangement gives the vendor an equitable lien upon the property, though the demand 59. Langdon v. Buel, 9 Wend. 80. 60. Haskins v. Patterson, 1 Edm. Sel. Cas. 120. 61. Wilson V. Little, 2 N. Y. 443; Wheeler v. Newbould, 16 N. Y. 392; Garlick v. James, 12 Johns. 146 ; King V. Van Vleck, 40 Hun 68, aff'd, 109 N. Y. 363; Lewis v. Graham, 4 Abb. Pr. 106 ; Haskins v. Kelly, 1 Abb. Pr., N. S., 63, 1 Rob. 160; Campbell V. Parker, 9 Bosw. 322; Cortelyou v. Lansing, 2 Cai. Cas. 200. See also Hasbrouck v. Vandervoort, 4 Sandf. 74. Promissory Note. — AATiere a debtor deposits with his creditor a promis- sory note as collateral security for a debt, the transaction is a, pledge. Garlick V. James, 13 Johns. 146. Where, by a written agreement, A. delivered to B. a note of a third party for 200 bushels of wheat valued at $200 and agreed, in case the wheat did not pay for s'lch sum, to make up the deficiency; u.A B. thereby gave to A. the power of redeeming the note, by paying $186 and interest at any time within six months of the time the note was payable, it waa held that the note was deposited as a pledge. McLean v. Walker, 10 Johns. 471. Assignment of Chattel Mortgage. — Where a mortgagor of chattels bor- rows money to buy in the mortgage, and procures an assignment of it to the lender, as security for the repay- ment of the loan, the mortgage be- comes in the hands of the latter a mere pledge for the loan and is dis- charged by a tender thereof. Haskins v. Kelly, 1 Abb. Pr., N. S., 63, 1 Rob. 160. Certificates of Stock. — An agree- ment, whereby the maker of notes de- livers certificates of stock as collateral security for the payment of the notes, stipulating that if the notes are not paid at maturity the securities shall be under the control of the holder who is authorized to dispose of them, and to apply the proceeds to the credit of the maker, is a pledge, not a mortgage. Lewis v. Graham, 4 Abb. Pr. 106. 62. King V. Van Vleck, 40 Hun 68, aff'd, 109 N. Y. 363. See also Hunt- ington V. Mather, 2 Barb. 538. 20 Chattel Moetgages. for the chattel mortgage is not made until some time after the delivery of the property. Such equitable lien is enforceable against the vendees and persons claiming under them, not borw, fide pur- chasers. But the failure of the vendors to demand the mortgage upon the delivery of the property, vests the legal title thereto in the vendees ; and the vendor cannot recover the same in an action at law but must resort to a suit in equity."^ But, if a contract to give a mortgage is not filed, it is not enforceable as an equitable lien as against third parties where the mortgage, if executed but not filed, would be void as against such parties.'* Sec. 7. General Assignment. The material and essential characteristic of a general assignment is the presence of a trust. The assignee is merely a trustee and not an absolute owner. He buys nothing and pays nothing, but takes the title for the performance of trust duties.*' A general assignment is distinguished from a chattel mortgage upon the further ground that the former covers all the property of the assignor."" An assignment by a debtor of all his property in trust for the benefit of a particular class of creditors, reserving the sur- plus to himself is fraudulent and void, but this principle does not apply where the assignment is to creditors for the purpose of securing their demands. Such a transfer, whatever may be its form, is in legal effect only a mortgage.®' Sec. 8. Assignment in Trust. By statutory enactment, a transfer of personal property, in trust for the use of the person making it, is void as against existing or 63. Husted v. Ingraham, 75 N. Y. ness accounts to a third person, do S51. not cover all the debtor's property 64. Bell V. New York Safety Steam and are only intended to secure the Power Co., 183 Fed. 274. See also payment of debts of the mortgagee mfra, the subdivision Operation as and certain other creditors mentioned Equitable Lien, p. 33. therein, they are not within the 65. Brown V. Guthrie, 110 N. Y. statute which regulates the making of 436. general assignments for the benefit 66. Brown v. Guthrie, 110 N. Y. of creditors. Delany v. Valentine, 154 435. N. Y. 692, When a chattel mortgage, executed 67. Leitch v. Hollister, 4 N. Y. 211 ; fl^d delivered by a debtor to one of Dunham V. Whitehead, 21 N. Y, his creditors, and a transfer of busi- 131. Distinguished feom Other Conteacts. 21 subsequent creditors of such person.** Where the assignment is made to the creditors themselves for the purpose of securing their particular demands, though the surplus of the property after the satisfaction of their demands is to be rendered to the assignor, the instrument is in legal effect only a chattel mortgage and is not vitiated by such statute."" An assignment by a debtor of his prop- erty to his creditor, in trust to sell and pay his own debt, reserving the surplus to the debtor or his assignees, is in effect a mortgage,'" and where the debt which it is designed to secure is paid, the property reverts to the original owner.'"^ Sec. 9. Lease Reserving Lien. A clause in a lease reserving to the landlord, as security for the rent, a lien upon property brought or crops grown upon the demised premises is not, strictly speaking, a chattel mortgage.'^^ Upon the execution of a lease providing that the lessor shall have a lien upon the crops which may be enforced by the taking and selling of such property, the title to the crops is not thereby transferred to the landlord as title is transferred to a chattel mortgagee. The land- lord does not acquire title until possession is taken or the instru- ment foreclosed. ''* While such an instrument does not pass title to property not in existence or not yet acquired at law, it gives the lessor a license to seize the property and title thereto passes upon seizure; in equity, the beneficial interest to the property is transferred and, upon its acquisition or coming into existence, title 68. Pers. Prop. L., § 34. And see debt shall be placed at the disposal infra,, the subdivision Prawdiulent of the party by whom the bill is made Trust, p. 118. and his creditors, is not an assign- 69. Leitch v. Hollister, 4 N. Y. 211; ment under our assignment laws but Dunham v. Whitehead, 21 N. Y. 131; is merely a mortgage with possession Delany v. Valentine, 154 N. Y. 692. in the mortgagee. Nichols v. Lyon, 70. Dunham v. Whitehead, 21 N. Y. 14 St. Rep. 549. 131 ; McClelland v. Eemsen, 36 Barb. 71. McClelland v. Eemsen, 36 Barb. 622, 14 Abb. Pr. 331, 23 How. Pr. 175, 622, 14 Abb. Pr. 331, 23 How. Pr. affd, 3 Abb. Dec. 74; 5 Abb. Pr., 175, aff'd, 3 Abb. Dec. 74, 5 Abb. Pr., W. S., 250. N. S., 250. A bill of sale, made to a party to 72. Streeter v. Ward, 12 St. Rep. secure a debt, with the agreement 333; Milliman v. Neher, 20 Barb. 37. that all the proceeds of the property 73. Streeter v. Wardj 12 St. Rep. over and above the amount of the 333. 22 Chattel Moetgages. is transferred -without the intervention of any new act/* Such a lien is enforceable to the same extent against third parties having no rights superior to those of the tenant. '' Thus, if the lease is duly filed as a chattel mortgage, a subsequent purchaser, though without knowledge of the provision in the lease, takes title subject to the landlord's claim.'" A lease reserving such a lien, however, operates as a chattel mortgage and is required to be filed as against creditors, etc." The reserved lien is valid and enforceable between the parties, but, if not filed, is void as to creditors or subsequent purchasers or mortgagees in good faith.'* A lease may contain a provision that the ownership of crops shall remain in the landlord until the tenant pays the rent or gives security therefor. Under such a contract, the title to the crops vests in the landlord as soon 74. McCaffrey v. Woodin, 65 N. Y. 459; Wismer V. Ocumpaugh, 71 N. Y. 113; Reynolds v. Ellis, 103 N. Y. 115; Nestell V. Hewitt, 19 Abb. N. C. 282. 75. Wismer v. Ocumpaugh, 71 N. Y. 113; Reynolds V. Ellis, 103 N. Y. 115. 76. Smith v. Taber, 46 Hun 313, 14 St. Rep. 644. 77. Duffus V. Bangs, 122 N. Y. 423; Reynolds v. Ellis, 34 Hun 47, affd, 103 N. Y. 115; Thomas 17. Bacon, 34 Hun 88; Betsinger v. Schuyler, 46 Huu 349, 12 St. Rep. 377; Hare v. Follett, 17 N. Y. Supp. 559 ; Steffin v. Steffin, 4 Civ. Pro. R. 179; Johnson v. Crofoot, 53 Barb. 574, 37 How. Pr. 59. Subsequent Mortgagee. — A pro- vision in a lease of real estate, rented for the purpose of raising nursery stock, that the lessor should have a lien, as security for the payment of the rent, upon the growing crops, fruits, etc., raised upon the premises, where the lease is not filed as a chattel mortgage, does not affect the right of a subsequent mortgagee and purchaser under mortgage foreclosure, where he had no knowledge of the provision in the lease. Duffus V. Bangs, 122 N. Y. 423. Filing of Instrument Not Required. — In Hawkins v. Beakes, 80 Hun 292, 30 N. Y. Supp. 91, affd, 150 N. Y, 562, mem., it appeared that the plaintiff took possession of all the property of his tenant under a chattel mortgage and the mortgagor there- upon conveyed to him the equity; four days thereafter the landlord agreed to give the tenant an option to repurchase the property in two years, under which arrangement all the hay and crops raised upon the farm were to be and remain the prop- erty of the landlord; it was held that this latter contract was not in the nature of a chattel mortgage and was not required to be filed. 78. Thomas v. Benton, 34 Hun 88; Betsinger v. Schuyler, 46 Hun 349, 12 St. Rep. 377; StefBn v. Steffin, 4 Civ. Pro. R. 179; Johnson v. Crofoot, 53 Barb. 574, 37 How. Pr. 59. Creditor Levying Upon Tenant's Interest. — Where an agreement for the cultivation of land upon shares provided that the title to all the prop- erty raised or produced should be and remain in the owner of the land until the fulfillment of the contract, it was held that such agreement; not having been filed, was invalid as against an DiSTiNGirisHED FROM Othee Conteacts. 23 as they come into existence. The only interest the tenant has is the right to acquire the property when he performs the conditions ; such an interest is not subject to execution though it may be reached by creditors in an equitable proceeding.^' Where an agree- ment to work a farm on shares provided that the owner should make certain advances to the worker to enable him to carry on the work, and that the title to the crops should remain in the owner until the advances were fully repaid, it was held that the instru- ment was not in the nature of a chattel mortgage and was not required to be filed and that the worker, before the payment of the advances, had no interest in the crop which was capable of transfer to a third party as against the landlord.*" Where an agreement was made between the landlord and the tenant of a farm that the tenant should take good care of the cows and, in case the hay raised upon the farm failed to winter them, the landlord would supply the de- ficiency at the rate of three dollars per ton, and, if there was a surplus, the landlord should have it and pay the tenant three dollars a ton therefor, it was held that the agreement did not place the title of the hay in the landlord.*^ Where, under a lease of a farm and seven cows, the landlord agreed to furnish sufficient hay to keep the cows " to grass " and the tenant agreed to pay the rent and to feed out all the fodder on said farm that was raised on the farm and to winter the stock " through to grass in the spring of 1884 on hay," it was held that the title to the hay was in the tenant and was subject to sale under execution against him.*^ Where a lease of a farm contained a clause that the butter and crops made execution levied upon the undivided tion. In such cases, it is not neees- interest of the tenant in the crops sary to have the execution returned under a judgment against him. Hare unsatisfied as a. condition precedent V. Follett, 17 N. Y. Supp. 559. of the right of a court of equity to Remedy of Creditor. — Where a, take jurisdiction. Steffin v. Steffin, 4 clause in a lease reserving a lien upon Civ. Pro. R. 179. crops is inoperative as against the 79. Andrew v. Newcomb, 33 N. Y. creditors of the tenant, because the 417. See also Hare v. Follett, 17 N. instrument is not properly filed, a Y. Supp. 559. creditor, if the lease is used as a 80. Booker v. Stewart, 75 Hun 214, fraudulent obstruction to the enforce- 27 N. Y. Supp. 114. ment of his execution, may invoke the 81. McCombs v. Becker, 3 Hun aid of a court of equity to remove 342. the obstruction in aid of the execu- 82. Hawkins v. Giles, 45 Hun 318. 24 Chattel Moetgages. by the tenant were to be under the control of the landlord until the rent was paid but should not be sold by the landlord prior to the 1st day of January in any year without the consent of the tenant, it was held that the landlord did not have any lien upon or title to such farm produce/* 83. HesB V. Sprague, 13 Week. Dig. 164. Chattel Moktgage8. 25 CHAPTER III. SUBJECTS OF MORTGAGE. Sec. 1. Chose in Action. a. In General. b. Liquor Tax Certificate. c. Bill of Lading or Warehouse Receipt. • 2. Property Not Owned by Mortgagor. a. In General. b. Property Fraudulently Obtained by Mortgagor. c. After-acquired Property. d. Property Not in Existence. e. Property Potentially in Existence. f. Crops. g. Operation as Equitable Lien. 3. Growing Trees. 4. Fixtures. 5. Boiling Stock. 6. Chattels Real. 7. Future Estate. 8. Stock of Goods. 9. Vessels. Sec. 1. Chose in Action. a. In General. — The statutory provisions concerning chattel mortgages relate to mortgages on " goods and chattels." The term " chattels," as used in the statute, refers to things that can be used, handled and transported, as horses, carriages, furniture, ma- chinery, tools and the numberless objects to be seen about us in every-day life, the value of which is in the possession of the thing itself.^ But the application of the statute to goods and chattels does not forbid the transfer of other kinds of personal property, such as choses in action, by way of mortgage. In fact, a mortgage of the latter may be a more effective security to the mortgagee for the filing thereof is not required.^ Thus, a valid mortgage has 1. Niles V. Mathusa, 162 N. Y. 2. See Niles v. Mathusa, 163 N. Y. 540. 546. 26 Chattel Moetgages. been made of a contract/ an insurance policy,* a mortgage," a lease," and a copyright.' Choses in action do not pass under general words in a conveyance.^ Where a chose in action is de- livered to a creditor as security for a debt, the transaction is gen- erally a pledge, not a mortgage." b. Liquor Tax Certificate. — A liquor tax certificate is personal property but is not a chattel within the meaning of the Lien Law and a transfer thereof as security for a loan need not be filed as a chattel mortgage. The transfer is valid though it is not filed.^" A mortgage of a liquor tax certificate and the renewal thereof gives the mortgagee no right to a renewal certificate subsequently issued, because it was not in existence when the mortgage was given. The mortgage, however, is good in equity as a contract to assign the new certificate when acquired. ^^ Where a liquor tax certificate is assigned by the holder to the person lending the money for its procurement, as security for the repayment of the loan, the assignee is entitled to its possession as against a receiver in supplementary proceedings of the property of the apparent owner who has come into possession thereof. ^^ 3. Hart v. Taylor, 82 N. Y. 373; Tyler v. Strang, 21 Barb. 198. An assignment of a contract for the manufacture of a safe and a power of attorney to collect the purchase price, as security for a loan, gives the assignee the right to collect the money for the safe when due but does not give him any lien or right to the possession of the safe. Hart v. Tay- lor, 82 N. Y. 373. 4. King V. Van Vleek, 109 N. Y. 363. 5. Hoyt V. Martense, 16 N. Y. 231; Harrison v. Burlingame, 48 Hun 212; Clark V. Henry, 2 Cow. 324; Slee v. Manhattan Co., 1 Paige 48. 6. Despard v. Walbridge, 15 N. Y. 374; Booth v. Kehoe, 71 N. Y. 341. 7. See Hall v. Ditson, 5 Abb. N. C. 198. 8. General Electric Co. v. Wight- man, 3 App. Div. 118, 39 N. Y. Supp. 420. 9. See supra, the subdivision Pledge, p. 16. 10. Niles V. Mathusa, 162 N. Y. 546; Koehler & Son Co. v. Flebbe, 21 App. Div. 210, 47 N. Y. Supp. 369. See also People v. Durante, 19 App. Div. 292, 45 N. Y. Supp. 1073. 11. McNeeley v. Welz, 166 N. Y. 124; Anchor Brewing Co. v. Burns, 32 App. Div. 272, 53 N. Y. Supp. 1005. An assignment of a liquor tax cer- tificate in the nature of a mortgage covering a certificate already issued and also for any renewal or subse- quent certificate does not give the mortgagee a right to the renewal certificate as against a person who advanced the money for the renewal and took an assignment thereof in similar form. Anchor Brewing Co. v. Burns, 32 App. Div. 272, 52 N. Y. Supp. 1005. 12. Koehler & Son Co. v. Flebbe, 21 App. Div. 210, 47 N. Y. Supp. 369. Subjects of Mortgage. 27 c. Bill of Lading or Warehouse Receipt. — The delivery of a bill of lading or warehouse receipt as security for a debt has the effect of transferring the property represented thereby and such delivery may constitute a mortgage of the property. ^^ Sec. 2. Property Not Owned by Mortgagor. a. In General. — It is essential to the validity of a chattel mort- gage that the mortgagor have some interest in the property he assumes to thus transfer.^* But a mortgagor may agree to mort- gage property not then owned or to give a lien upon it as soon as he gets it and equity will enforce the agreement and establish the lien." b. Property Fraudulently Obtained by Mortgagor. — Although a thief can acquire no title to property stolen, a person in posses- sion of chattels, though he acquired his possession by a fraudulent purchase, may give a good title thereto to a bona fide mortgagee. The title of such a mortgagor is not void, but voidable, and is good until avoided by the person defrauded.^' Where, however, the mortgage is given to hinder, delay, and defraud the creditors of the mortgagor,^' or to secure an existing indebtedness,^* the mort- gagee is not entitled to the rights of a bona fide mortgagee, and his rights are inferior to those of the original vendor who has exercised his option to avoid the sale. In an action by the original vendor to recover the value of the property, he is entitled, even as against the mortgagee, to rest upon proving the fraud in the original pur- chase, and the burden is upon the latter to prove that the mortgage was taken in good f aith.^* 13. First Nat. Bank v. Kelly, 57 also MeEchron v. Martine, 111 App. N. Y. 34; Bank of Rochester v. Jones, Div. 805, 97 N. Y. Supp. 951; Church 4 N. Y. 497; Farmers & Mechanics' v. Lapsham, 94 App. Div. 550, 88 N. Nat. Bank of Buffalo v. Lang, 87 N. Y. Supp. 222. Y. 209. 15. National Bank of Deposit V. 14. National Bank of Deposit v. Rogers, 166 N. Y. 380, 390. See also Rogers, 166 N. Y. 380; Crandall v. infra, the subdivision Operation as Brown, 18 Hun 461; Farmers' L. & Eqmtable Lien, p. 33. T. Co. V. Long Beach Improvement 16. Lembeck, etc., Brewing Co. v. Co., 27 Hun 89; Brunswick-Balke- Sexton, 184 N. Y. 185. Collender Co. v. Stephenson, 4 N. Y. 17. Moyer v. Bloomingdale, 38 App. Supp. 123; Tweedie v. Clark, 114 Div. 227, 56 N. Y. Supp. 991. App. Div. 296, 99 N. Y. Supp. 856; 18. Van Slyck ». Newton, 10 Hun 554. Stewart v. Fidelity Loan Assoc., 19 19. Moyer v. Bloomingdale, 38 App. Mise. 49, 42 N. Y. Supp. 705. See Div. 227, 56 N. Y. Supp. 991. 28 Chattel Mortgages. c. After-Squired Property. — A mortgage of property to be subsequently acquired is not effective in passing the title of such, property to the mortgagee.^" Such a mortgage may, however, be construed as an agreement to give a mortgage on such property when acquired and may thus operate as an equitable lien thereon/^ At law the mortgagee has no title to the property but has a license 20. Gardner v. McEwen, 19 N. Y. 123; Yates v. Olmstead, 56 N. Y. 632; Kribbs v. Alford, 120 N. Y. 519; Mc- Neeley v. Welz, 166 N. Y. 124 ; Titus- ville Iron Co. v. City of New York, 207 N. Y. 203; Perkins v. Batteraon, 66 Hun 583, 21 N. Y. Supp. 815; Me- dina, etc., Light Co. v. Buffalo, etc.. Safe Deposit Co., 119 App. Div. 245, 104 N. Y. Supp. 625; Denier v. Bonewur, 134 App. Div. 577, 119 N. Y. Supp. 313; Beebe v. Richmond L. H. & P. Co., 13 Misc. 737, 35 N. Y. Supp. 1; Brunswick-Balke-CoUender Co. v. Stepienson, 4 N. Y. Supp. 123; Otis V. Sill, 8 Barb. 102; Conderman v. Smith, 41 Barb. 404; Levy v. Welah, 2 Edw. Ch. 438. 21. Wismer v. Ocumpaugh, 71 N. Y. 113; Kribbs v. Alford, 120 N. Y. 519; McNeeley v. Welz, 166 N. Y. 124; National Bank of Deposit v. Rogers, 166 N. Y. 880; TitusviUe Iron Co. v. City of New York, 207 N. Y. 203; Kennedy v. National Union Bank of Watertown, 23 Hun 494; Perkins v. Batterson, 66 Hun 583, 21 N. Y. Supp. 8,15; Denier v. Bonewur, 134 App. Div. 677, 119 N. Y. Supp. 313; Beebe v. Richmond L. H. & P. Co., 13 Misc. 737, 35 N. Y. Supp. 1; Stevens V. Watson, 4 Abb. Dec. 302. See also infra, the audivision Operation as Equitable Lien, p. 33. Upon Goods to Be Manufactured from Raw Material Not on Hand. — A chattel mortgage given by a manu- facturing corporation upon all the goods of a designated kind manufac- tured, and in the process of manufac- ture, at its mills, and upon all of such goods thereafter to be manufac- tured, or in process of manufacture, and upon all the raw material on hand, or thereafter to be on hand, in the absence of fraud, may be con- strued as u contract to give a lien upon raw material and upon the goods to be manufactured therefrom, which will take effect, as between the parties, as soon as property of either kind comes into the ownership of the mortgagor. Perkins v. Batterson, 66 Hun 583, 21 N. Y. Supp. 815. Invalid in Law, Yet Operative in Equity. — It is sometimes said that a mortgage on after-acquired prop- erty is invalid in law, yet operative in equity. In Kribbs v. Alford, 120 N. Y. 519, the court discussing this apparent solecism, said : " Invalidity at law imports nothing more than that a mortgage of property there- after to be acquired is ineffectual as a grant to pass the legal title. A court of equity, in giving effect to such a provision, does not put itself in conflict with that principle. It does not hold that a conveyance of that which does not exist operates as a present transfer in equity, any more than it does in law. But it construes the instrument as operating by way of present contract, to give a lien, which, as between the parties, takes effect and attaches to the subject of it as soon as It comes into the owner- ship of the party." Subjects of Moetgage. 29 to seize tie property when it is acquired by the mortgagor.^^ Upon such seizure, title passes to the mortgagee. ^^ A mortgage upon a retail stock of goods which purports to cover goods to be purchased in the future is effective only as an equitable lien/* But such a mortgage, if otherwise valid, is not void because it professes to cover after-acquired property ; it may be good as to the previously acquired property.^'^ A railroad is authorized to borrow such sums of money as may be necessary for completing and finishing or operating or improving its railroad, or for any other of its lawful purposes and to issue and dispose of its bonds for any amount so borrowed, and to mortgage its property and franchises to secure the payment of any debts contracted for such purposes. ^° A mortgage given under such statutory authority covers property subsequently acquired, either realty or personalty.^' Where the owner of a vessel, aiter executing a mortgage thereon, removed old and worn-out sails and replaced them with a new set, it was held that the new sails were covered by the mortgage.^* d. Property Not in Existence. — A chattel mortgage requires a subject in esse, and, at law, conveys no title to the mortgagee when given upon property not owned, either actually or potentially, 22. McCaffrey v. Woodin, 65 N. Y. Skilton v. Codington, 185 N. Y. 80. 459; Kennedy v. National Union See also infra, the subdivision Beser- Bank of Watertown, 23 Hun 494. vation ly Mortgagor of Disposal of Possession by Mortgagee. — A Property, p. 108, and mfra, the chap- mortgage covering all machinery and ter Mortgage on Stock of Goods, p. 186. tools and all lumber and stock owned 26. Railroad Law, § 8, subd. 10. by a firm or that may thereafter be 27. Piatt v. New York & Sea Beach owned by the partners conveys to the E. Co., 9 App. Div. 87, 41 N. Y. Supp. mortgagee title to such subsequently 42, wherein the court said : " By the acquired property where he takes terms of the law, therefore, it was possession before any rights of third contemplated that, for the money thus parties intervene. Kennedy v. Na- obtained the property acquired tional Union Bank of Watertown, 23 should be pledged as the security for Hun 494. its repayment, and this cannot be 23. McCaffrey V. Woodin, 65 N. Y. accomplished without holding that the 459 ; Perkins V. Batterson, 66 Hun lien of the mortgage attaches to such 583, 21 N. Y. Supp. 815. property as shall be necessary for 24. Ludwig V. Kipp, 20 Hun 265; that purpose, whether it is in exist- Stewart v. Fidelity Loan Assoc, 19 enee at the time when the mortgage Misc. 49, 42 N. Y. Supp. 705; Levy is given or is subsequently acquired, i>. Welsh, 2 Edw. Ch. 438. and whether such property be such as 25. Gardner v. McEwen, 19 N. Y. is denominated real or personal." 123; Yates v. Olmstead, 56 N. Y. 632; 28. Southworthi;.Isham,3Sandf. 448. 30 Chattel Moetgages. by the mortgagor.^® But when the property comes into existence and in the ownership of the mortgagor, in equity such a mortgage will operate as an equitable lien.^" And at law, the mortgage gives the mortgagee a license to seize the property and title passes to the mortgagee upon such seizure.*^ No legal lien is created by a mortgage upon property not in existence ; the lien is purely equitable.^^ Upon default, the mort- gagee does not become the legal owner of the property. To obtain a title, good as against third parties, he must seize the property or foreclose his equitable lien.^* A mortgage of property to be manufactured does not of itself pass title to such property nor create a legal lien thereon.** 29. Edgell V. Hart, 9 N. Y. 213; McCaffrey v. Woodin, 65 N. Y. 459; Hart V. Taylor, 82 N. Y. 373; Deeley V. Dwight, 132 N. Y. 59; Rochester Distilling Co. v. Rasey, 142 N. Y. 570; McNeeley v. Welz, 166 N. Y. 124; National Bank of Deposit v. Rogers, 166 N. Y. 380; Farmers' L. & T. Co. V. Long Beach Improvement Co., 27 Hun 89 ; Perkins v. Batterson, 66 Hun 583, 21 N. Y. Supp. 815; Pleetham v. Reddick, 82 Hun 390, 31 N. Y. Supp. 342; Anchor Brewing Co. V. Burns, 32 App. Div. 272, 52 N. Y. Supp. 1005; Denier v. Bonewur, 134 App. Div. 577, 119 N. Y. Supp. 313; Beebe v. Richmond L. H. & P. Co., 13 Misc. 737, 35 N. Y. Supp. 1 ; Stewart V. Fidelity Loan Assoc, 19 Misc. 49, 42 N. Y. Supp. 705 ; Brunswick-Balke- Collendar Co. v. Stephenson, 4 N. Y. Supp. 123; Otis v. Sill, 8 Barb. 102; Wood V. Lester, 29 Barb. 145. Corporate Mortgage. — A mortgage executed by a business corporation organized under the Act -of 1875, upon its real and personal property, covers only such personalty as was in existence when the mortgage was given. Beebe v. Richmond L. H. & P. Co., 13 Misc. 737, 35 N. Y. Supp. 1. ■ 30. McCaffrey v. Woodin, 65 N. Y. 459; Deeley v. Dwight, 132 N. Y. 59; Rochester Distilling Co. v. Rasey, 142 N. Y. 570; National Bank of Deposit V. Rogers, 166 N. Y. 380; Perkins v. Batterson, 66 Hun 583, 21 N. Y. Supp. 815; Anchor Brewing Co. v. Burns, 32 App. Div. 272, 52 N. Y. Supp. 1005; Beebe v. Richmond L. H. & P. Co., 13 Misc. 737, 35 N. Y. Supp. 1; Otis V. Sill, 8 Barb. 102; Wood V. Lister, 29 Barb. 145. See infra, the subdivision Operation as Equitable Lien, p. 33. 31. McCaffrey v. Woodin, 63 N. Y. 459. 32. Deeley v. Dwight, 132 N. Y. 59. 33. Denier v. Bonewur, 134 App. Div. 577, 119 N. Y. Supp. 313. See also infra, the subdivision Operation as Equitable Lien, p. 33. 34. Hart V. Taylor, 82 N. Y. 373; Deeley v. Dwight, 132 N. Y. 59; Perkins v. Batterson, 66 Hun 583, 21 N. Y. Supp. 815. Owner of real estate does not ac- quire such a title to an elevator sold by conditional sale so that he can give a mortgage thereon, where the materials for the elevator are on the premises but it is not yet constructed. Graves Elevator Co. v. Callanan, n App. Div. 301, 42 N. Y. Supp. 930. Subjects of Moetgaqe. 31 q. Property Fotentially in Existence. — Property to te the sub- ject of a mortgage need not actually exist in the possession of the mortgagor; it is sufficient if it potentially exists, and when the property changes from a potential to an actual existence, the title thereto passes to the mortgagee.^^ A person owns property " potentially " when it is the ordinary increase or growth of other property which he has; as fruit or grass from his farm, milk from his cow, wool from his sheep, wine from his vineyard, or the future offspring from a female animal.^" Thus, the owner or tenant of a farm may mortgage the dairy products to be pro- duced therefrom.^^ When ashes are the subject of a mortgage, it may properly provide that the lien thereof shall extend to pot- ash to be manufactured therefrom, and in such a case, the lien attaches to the new article as fast as it is manufactured/' Where a construction company executed a mortgage conveying all property or rights of property acquired or to be acquired under a concession from a foreign government giving it the right to build a railroad and providing for the subsequent incorporation of a railroad company and for the issue of its securities, part of which were to be delivered to the construction company in pay- ment for the work as it progressed, it was held that the mortgage covered the securities to be thereafter issued and delivered to the mortgagor.^" Property is not potentially owned where the mortgagor has no possession of or interest in the agent of its production.*" A 35. Farmers' L. & T. Co. v. Long grass or grain; sheep, where there is Beach Imp. Co., 27 Hun 89 ; Betsinger a sale or mortgage of wool to be V. Schuyler, 46 Hun 349, 12 St. Rep. grown in the future, or cows, where 377; Van Vechten v. McKone, 69 there is a sale or mortgage of t':e Hun 510, 23 N. Y. Supp. 428; Con- increase. Graves Elevator Co. i. derman v. Smith, 41 Barb. 404; Callanan, 11 App. Div. 301, 42 X. V. Cooper V. Douglass, 44 Barb. 409. Gupp. 930. 36. Page v. Larrowe, 22 N. Y. Supp. 37. Betsinger v. Schuyler, 46 E.in 1099, 51 St. Rep. 35; Farmers' L. & 349, 12 St. Rep. 377; Conderman r. T. Co. V. Long Beach Improvement Smith, 41 Barb. 404. See also Vin Co., 27 Hun 89. Vechten v. McKone, 69 Hun 510, 25 " To be potentially in existence, the X. Y. Supp. 428. property or right out of which it is 38. Dunning c. Stearns, 9 Barb. GC. to arise, grow or be created, must 39. Central Trust Co. v. West India be legally in the possession of the Imp. Co., 169 K. Y. 314. person, as sown seed, when there is 40. Farmers' L. & T. Co. v. Long a sale or mortgage of future crops of Beach Improvement Co., 27 Hun 89. 32 Chattel Moetgages. mortgage of the earnings of a mariner of new and distinct adven- tures, not begun or contemplated, does not give the assignee the legal title thereto or a legal lien thereon.*^ f . Crops. — Crops not yet grown, but which grow spontane- ously, the roots thereof being in the soil when the mortgage is given, are held to have such a potential existence that they may be mortgaged.*^ If a person, who, by agreement with the owner of land, has a one-half interest in a fallow for the purpose of raising a crop of wheat, executes a chattel mortgage upon the fallow, the ihortgage will bind the interest of the mortgagor in the fallow, and in the wheat afterwards put in under the agreement.*' But a crop which is to be planted and raised in the future has no potential existence and is not the subject of a mort- gage.** However, where a landlord reserves, in a lease of a 41. Cooper v. Douglass, 44 Barb. 409, wherein the court aaid: "The theory, as I understand it, upon which future earnings or the result of fu- ture labor are sometimes allowed to be anticipated and appropriated to the payment or security of a present indebtedness, is that they are con- nected with a contract or employment already in existence, or are the fruit of advances made or supplies fur- nished to carry on the business out of which the future property or earn- ings arise; and then the pledge attaches not to this property or these earnings, from the moment of the contract, but from the moment they spring into existence by virtue of the contract of the parties, that they shall do so. But I think this doc- trine has not been carried, except in a few cases, which do not seem to be well considered, to such an extent as to embrace the result of labor unde- fined in character and unrestricted in time, which arise out of an em- ployment having no connection with the nature or object of the indebted- ness, and having in fact no real or contemplated existence at the time the contract is entered into." 42. Jenks v. Smith, 1 N. Y. 90;- McCaflFrey v. Woodin, 65 N. Y. 459; Harder V. Plass, 57 Hun 640, UN. Y. Supp. 226; Rochester Distilling Co. V. Rasey, 65 Hun 512, 20 N. Y. Supp. 583, aif'd, 142 N. Y. 570; Meetham v. Reddick, 82 Hun 390, 31 N. Y. Supp. 342. Hay ia a perennial crop which has a potential existence. Nestell v. Hewitt, 19 Abb. N. C. 282. Growing grass owned by a person other than the owner of the realty ia personal property and may be mortgaged as such. Davidson v. Os- borne, 75 Misc. 391, 135 N. Y. Supp. 675. Wine Plants. — A mortgage of wine plants by a teiftint is valid as be- tween the parties and will enable the mortgagee, by foreclosure and sale, to acquire the mortgagor's right to re- move them from the premises. Win- termute v. Light, 46 Barb. 278. 43. Shuart v. Taylor, 7 How. Pr. 251. 44. Rochester Distilling Co. v. Rasey, 142 N. Y. 570, aff'g 65 Hun 512, 20 N. Y. Supp. 583; Fleetham V. Reddick, 82 Hun 390, 31 N. Y. Supp. 342. Subjects of Moetgage. 33 farm, a lien upon or title to growing crops as security for the rent, though such crops are not planted at the time of the execu- tion of the lease, the legal title to the crops vests in the landlord when they come into actual existence.*" Where a lessee, after the execution of a lease of a farm, but before the commencement of his term, gave a mortgage on grass to be cut therefrom during the term, it was held that the lessee had no potential ownership in the grass and the mortgage was not valid.*' g. Operation as Eqvdtable Lien. — • A mortgage upon non- existing or after-acquired property, while not effective as a mort- gage, operates, in some cases, as an equitable lien.*'' Where one of the lessees of premises executed a mortgage upon his interest in the lease and piroperty to be placed on the premises, and there- after the lessees transferred to another their rights under the lease, it was held that the mortgage operated as an equitable lien upon property subsequently placed on the premises by such lessees and that such lien was effective as against the transferees who had constructive knowledge thereof, but that such lien did not cover property subsequently placed on the premises by the trans- ferees.** Where a lease of certain hotel property contained a clause: "A lien to be given by the said lessees to said lessors to secure the payment thereof (the rent) on all the furniture that A chattel mortgage of potatoes not the contract provides that the owner- planted carries no title to the mort- ship of the crops shall remain in the gagee. Cressey v. Sahre, 17 Hun owner until the tenant pays the rent 120. or gives security therefor, the title As against creditors, a mortgage to the crops vests in the landlord as upon crops not yet planted is void, soon as the crops come into existence but, as to crops planted, it is valid and the tenant has no interest therein if filed. Rochester Distilling Co. v. which can be levied upon under an Easey, 65 Hun 512, 20 N. Y. Supp. execution; the only interest of the 583, afd, 142 N. Y. 570. tenant is the right to acquire the 45. Andrew v. Newcomb, 32 N. Y. property when he performs the con- 417; Booher v. Stewart, 75 Hun 214, ditions. Andrew v. Newcomb, 32 27 N. Y. Supp. 114; Fleetham v. N. Y. 417. Reddick, 82 Hun 390, 31 N. Y. Supp. 46. Page v. Larrowe, 22 N. Y. Supp. 342; Nestell v. Hewitt, 19 Abb. N. C. 1099, 51 St. Rep. 35. 282. Compare Milliman v. Neher, 20 47. See supra, the subdivision After- Barb. 37. acquired Property, p. 28; Property Interest of Tenant. — Where the Tiot in Ewistenoe, p. 29. owner of a farm leases the same and 48. Kribbs v. Alford, 120 N. Y. 31*. 3 34 Chattel Moetgages. shall be placed in said hotel by said lessees," it was held that the clause did not create a lien, but was a covenant to do so, but that equity would decree a specific performance thereof.*' Such equitable lien may be foreclosed by a suit in equity ; ""* and if the mortgagor has disposed of the property, the mortgagee can impress his lien upon the avails thereof/^ But, at law, no 'lien upon or title to the mortgaged property passes to the mort- gagee." The extent of the mortgagee's legal rights is a license to seize the property. Upon such seizure, legal title thereto is vested in the mortgagee.^' 49. Hale v. Omaha, Kat. Bank, 49 N. Y. 626. 50. Deeley v. Dwight, 132 N. Y. 59. Chose in Action. — A mortgage pur- porting to cover after-acquired prop- erty creates merely an equitable lien thereon; the mortgagee to subject the property to the lien of his mortgage must take physical possession thereof, if it is of a chattel nature, and, if it is a chose in action, he must com- mence a proceeding in equity to sub- ject it to the lien. Medina, etc., Light Co. V. Buffalo, etc., Safe De- posit Co., 119 App. Div. 245, 104 N. Y. Supp. 625. Trust. — If a mortgage upon prop- erty to be acquired is valid as a con- tract to give a lien, it can be en- forced only as a right under the con- tract, not as a trust attached to the property. Otis v. Sill, 8 Barb. 102. 51. Hale v. Omaha Nat. Bank, 49 N. Y. 626. 52. Deeley v. Dwight, 132 N. Y. 59; Fleetham v. Reddick, 82 Hun 390, 31 N. Y. Supp. 342. 53. McCaffrey v. Woodin, 65 N. Y. 459; Fleetham v. Reddick, 82 Hun 390, 31 N. Y. Supp. 342. Legal Rights of Mortgagee. — Where a person gives to another a chattel mortgage upon a crop of grain to be planted in the future, not for the purpose of securing rent due to the mortgagee, the mortgagee ac- quires thereby no legal title to the crop thereafter planted or raised by the mortgagor; the mortgage, how- ever, confers on the mortgagee a li- cense to take such crop, and if he seizes it before the sale thereof by the mortgagor, the title to such prop- erty then vests in him, but, if prior to any such seizure by the mort- gagee the mortgagor sells the prop- erty, the mortgagee, never having had legal title thereto, cannot main- tain an action for the conversion thereof. Fleetham v. Reddick, 82 Hun 390, 31 N. Y. Supp. 342. Replevin. — Where a chattel mort- gage provides that the mortgagor may sell the mortgaged property from time to time if he replace it with other goods of a similar kind and quantity, the mortgagee, upon the default of the mortgagor, cannot maintain an action to replevy the substituted property. Denier v. Bone- wur, 134 App. Div. 577, 119 N. Y. Supp. 313. Equitable Defense. — Under our system of administering law and equity, an equitable defense may be set up in a legal action, and thus the mortgagee may, in certain cases, set up his equitable lien as a defense to an action at law. See Anchor Brewing Co. v. Bums, 32 App. Div. 272, 52 N. Y. Supp. 1005. Subjects of Moetgage. 35 An equitable lien, in the absence of fraud, is valid as between the parties,"* and third persons with knowledge thereof.'^ But, until the mortgagee seizes the property or does some act to make his lien effective, it is invalid as against creditors, or purchasers or mortgagees in good faith."" To be effective as against a sub- sequent purchaser or mortgagee, it is not essential that he have actual knowledge thereof; constructive notice, such as given by the proper filing of the mortgage, is sufHcient."' The mortgage, if filed, is notice, though a search in the clerk's office fails to inform the searcher thereof."' A mortgage operating as an equitable lien is superior to a second mortgage expressly subject to the prior mortgage."' 54. Husted v. Ingraham, 75 N. Y. 251; Ludwig v. Kipp, 20 Hun 365; Kennedy v. National Union Bank of Watea-town, 83 Hun 494; Perkins v. Batterson, 66 Hun 583, 21 N. Y. Supp. 815. 55. Kribbs v. Alford, 120 N. Y. 519; Wood V. Lester, 89 Barb. 145; Tilden V. Tilden, 26 Misc. 672, 57 N. Y. Supp. 864. 56. Booheaier Distilling Co. v. Ra«ey, 142 N. Y. 570 ; TitusviUe Iron Co. V. City of New York, 207 N. Y. 203; Farmers' L. & T. Co. v. Long Beaoh Improvement Co., 27 Hun 89; Reynolds v. Ellis, 34 Hun 47, aff'd, 103 N. Y. 115; Perkins v. Batterson, 66 Hun 583, 81 N. Y. Supp. 815; Beebe v. Richmond L. H. & P. Co., 13 Misc. 737, 35 N. Y. Supp. 1; Tilden V. Tilden, 26 Misc. 672, 57 N. Y. Supp. 864 ; Otis v. Sill, 8 Barb. 102 ; Cooper V. Douglas, 44 Barb. 409. Seizure. — Where the mortgagee, in a mortgage of subsequently ac- quired property, seizes the property before the rights of third parties intervene, he may hold the same as against the mortgagor or third parties. McCaffrey v. Woodin, 65 N. Y. 459; Kennedy v. National Union Bank of Watertown, 23 Hun 494; Perkins v. Batterson, 66 Hun 583, 31 N. Y. Supp. 815. Creditors. — A mortgage cannot be given future effect as a lien upon personal property, which, at the time of its delivery, was not in existence, actually or potentially when the rights of creditors have intervened. Rochester Distilling Co. v. Rasey 142 N. Y. 570 ; Titusville Iron Co. V. Ci^ of New York, 207 N. Y. 203. A bona fide purchaser of the prop- erty is entitled to hold the same dis- charged of the equitable lien. Wood V. Lester, 89 Barb. 145. Action by Lienor against Subse- quent Mortgagee. — An action cannot be maintained by one claiming a prior equitable lien upon personal property against a subsequent mortgagee on the theory that the defendant has so con- ducted himself in the exercise of his legal right of sale as unnecessarily to reduce the value of the plaintiff's lien, where it appears that the de- fendant has done nothing but exer- cise his legal right to foreclose his mortgage and sell the interest of the mortgagor in the property. Hale v. Omaha National Bank, 64 N. Y. 550. 57. Kribbs v. Alford, 120 N. Y. 519. 58. Kribbs v. Alford, 120 N. Y. 519. 59. Stevens i>. Watson, 4 Abb. Dec. 302. 36 Chattel Moetgages. Sec. 3. Growing Trees. A chattel mortgage upon nursery stock works a severance of the stock from the real estate and after default the absolute title vests in the mortgagee, who becomes entitled to enter upon the property and remove it with as little injury to the owner of the realty as possible.*" But, it seems, that a mortgage upon growing trees does not work such a severance until default.*^ Sec. 4. Fixtures.** Whether property upon which a mortgage is given is per- sonalty and thus subject to a chattel mortgage or whether it is so annexed to the realty as to be subject only to a real estate mort- gage often presents a difficult question."' Where a mortgage is given upon chattels prior to their annexation to the realty, they generally retain their character as personal property, such being deemed the intention of the parties."* But it has been held that 60. DuffuB V. Bangs, 43 Hun 53, aif'd, 122 N. Y. 423. 61. Bank of Lansingburgh v. Crary, 1 Barb. 543. 62. Fixtures. — As to what con- stitute, see Wait's Law and Prac- tice (7th ed.), vol. 1, p. 817. 63. Looms in Woolen Factory.— Where looms in a woolen factory, together with the factory, were con- veyed by mortgage recorded only as a real estate mortgage, it was held that a creditor of the mortgagor could levy upon the looms, where they were connected with the motive power by leather bands but not otherwise annexed to the building than by screws holding them to the floor. Murdock v. Gifford, 18 N. Y. 28. Hop poles used in the raising of hops upon a farm are covered by a mortgage of the land, whether they are upon the farm at the time of the giving of the mortgage or are subse- quently brought thereon, and the lien of the mortgage upon them is superior to the title acquired by one who, with knowledge of the prior mortgage and of the mortgagor's insolvency, takes a chattel mortgage upon the poles im- mediately after their removal from the farm, to secure himself from liability for prior indorsements made by him for the accommodation of the mortgagor. Sullivan v. Toole, 26 Hun 203. Theatre chairs, secured to the floor of a theatre by screws 2% inches in length, do not lose their character as personalty and may be the subject of a chattel mortgage. Metropolitan Concert Co. v. Sperry, 9 St. Rep. 342. 64. Sisson v. Hibbard, 75 N. Y. 542; Kinsey v. Bailey, 9 Hun 452. Salt Kettles. — Where salt kettles were bought and mortgaged to the seller as personalty and then em- bedded in brick arches but could be removed therefrom without injury at an inconsiderable expense, it was held that they continued personalty as against a subsequent purchaser of the salt works, who had no actual notice of the facts. Ford t). Cobb. 20 N. Y. 344. Subjects of Mobtgage. 37 chattels may be so annexed to the realty that they lose their char- acter as personalty. In such a case the remedy of the mortgagee is against the person who wrongfuly converts the property into realty.'^ Under a lease providing that all alterations made by either party, except movable fixtures, shall be the property of the lessor, the holder of a chattel mortgage given by the lessee upon trade fixtures attached to the building has no lien thereon as against the lessor." Sec. 5. Rolling Stock. The rolling stock of a railroad is not a part of its realty, but retains its character as personal property, and may be the subject of a chattel mortgage."' Sec. 6. Chattels Real. A lease of real estate for a term of years is termed a " chattel real." "° It is personal property but is not a " chattel " within the meaning of the statutes relating to the filing of chattel mort- gages and a mortgage thereof is not, therefore, required • to be filed.'" Sec. 7. Future Estate. A mortgage upon a vested interest in personal property, not reducible to possession until the death of a third party, is valid as an equitable mortgage; such a mortgage need not be filed as a chattel mortgage.'" 65. Voorhees v. McGinnis, 48 N. Y. 68. Eeal Property Law, § 33. 282. Later cases, however, have cast 69. In re Fulton, 153 Fed. 664; doubt upon the authority of Voor- State Trust Co. v. Casino Co., 19 App. hees V. McGinnis. See TiflFt v. Hor- Dlv. 344, 46 N. Y. Supp. 492. See ton, 53 N. Y. 377 ; Kinsey, v. Bailey, also State Trust Co. v. Casino Co., 9 Hun 452. 5 App. Div. 381, 39 N. Y. Supp. 258; 66. Excelsior Brewing Co. v. Smith, Westchester Trust Co. v. Hobby 125 App. Div. 668, 110 N. Y. Supp. 8. Bottling Co., 102 App. Div. 464, 92 67. Hoyle t'. Plattsburgh & Mon- N. Y. Supp. 482, aff'd, 187 N. Y. 577, treal R. Co., 54 N. Y. 314; Stevens v. mem. Buffalo & N. Y. City R. Co., 31 Barb. 70. Tilden v. Tilden, 26 Misc. 672, 590, overruling Fanners' L. & T. Co. 57 N. Y. Supp. 864. V. Hendrickson, 25 Barb. 484. -38 Chattel Mortgages. Sec. 8. Stock of Goods. A mortgage on a retail stock of goods is a questionable security. If there is an arrangement between the parties that the mortgagor may sell the goods for his own benefit, the mortgage is generally deemed fraudulent as to the creditors of the mortgagor.''^ A procedure is now outlined by statute by which a lien may be imposed on a stock of goods.'^ Sec. 9. Vessels. The validity and effect of mortgages on vessels is, in many respects, different from mortgages upon other property. A sub- sequent chapter of this work is devoted to such mortgages.''' 71. See infra, the subdivision Res- See infra, the chapter Mortgage on ervation by Mortgagor of Disposal of 8 took of Goods, p. 186. Property, p. 108. 73. See infra, p. 189. 7S. Personal Property Law, § 45. Chattel Moktqages. 39 CHAPTER IV. FORM AND VALIDITY. Sec. I. In General. 2. Verbal Mortgage. 3. Parties. a. In General. b. Infants. c. Partnership. d. Joint Owners of Property. e. Joint Mortgagees. 4. Corporate Mortgages. a. Statute. b. Consents. c. Who May Attack for Failure to Comply with Statute. d. Corporate Mortgage Operating as Preference. e. Mortgage by Railroad. f. Filing of Corporate Mortgage. «. Debt. a. In General. b. Future Advances. e. Inaccurate Statement of Debt, d. Parol Evidence to Explain. 6. Description of Property. a. In General. b. Indefinite. c. Schedule. d. Parol Evidence to Explain. 7. Validity of Mortgage. a. In General. b. By What Law Determined. c. Usurious Mortgage. d. Mortgage to Compound Crime. e. Delivery of Mortgage. f. Alteration of Mortgage. g. Confusion of Goods. Sec. 1. In General. 'So particular form is required to constitute a valid chattel mortgage.^ An instrument in the form of a real estate mortgage, 1. McCafifrey v. Woodin, 65 N. Y. 552; Nestell v. Hewitt, 19 Abb. N. C. 459; Fitzgerald V. Atlanta Home Ins. 282. Co., 61 App. Div. 350, 70 N. Y. Supp. 40 Chattel Moetoaqes. including therein personal property, is deemed a chattel mortgage as to the personalty.^ Sec. 2. Verbal Mortgage. At common law, a verbal mortgage of chattels was valid though the mortgagor retained possession of the mortgaged prop- erty, the retention of possession, however, being considered a badge of fraiid.* As a mortgage is a sale (upon condition) it may be affected by the Statute of Frauds, if not in writing. An oral mortgage may also be affected by the statutes requiring the filing of mortgages.* But, in many instances, mortgages are effective though not filed, and a mortgage of property worth less than $50 is not avoided by the Statute of Frauds.' Even where ,the value of the property exceeds $50, if the mortgagee takes pos- session of the property, both the Statute of Frauds and the requirement of filing are satisfied and a verbal mortgage, under such circumstances is valid." Where a tenant agreed by parol, with his lessor, that he would turn out hay and grain to secure the payment of the rent reserved in the lease, if the lessor was afraid that she would not get her pay; the value of the property being over $50, and nothing being paid, and no receipt or credit actually given, or possession delivered, it was held that the transaction rested in words merely, and no title to such property passed to the lessor.'' A mortgagee of chattels cannot obtain a lien upon other similar chattels, as against a subsequent purchaser thereof, through a verbal agreement between himself and his mortgagor to consider them substituted in the place of those described in the mortgage.' 2. Fitzgerald v. Atlanta Home Ins. Carbondale, etc., R. Co., 149 N. Y. Co., 61 App. Div. 350, 70 N. Y. Supp. 86. 552; holding that such an instru- 6. Bank of Rochester v. Jones, 4 ment is a chattel mortgage within the N. Y. 497 ; Bardwell V. Roberts, 66 meaning of that term as used in New Barb. 433. See also Ackley v. Finch, York standard fire insurance policy. 7 Cow. 290; Ferguson v. Union Fur- 3. Terwilliger v. Ontario, Carbon- nace Co., 9 Wend. 345. dale, etc., R. Co., 149 N. Y. 86. 7. Buskirk v. Cleveland, 41 Barb. 4. Ceas v Bramley, 18 Hun 187. 610. 5. Bank of Rochester v. Jones, 4 8. Powers t>. Freeman, 2 Lans. N. Y. 497; Terwilliger v. Ontario, 127. Poem and Validity. 41 Sec. 3. Parties. a. In General. — All parties -who are legally competent to make other valid contracts may make chattel mortgages. It is usual in a chattel mortgage to describe the parties by name and residence.. The place of residence of the mortgagor controls the place of filing the mortgage, but the recital in the mortgage of his residence is of no importance. His correct resi- dence may be shown when the filing of the mortgage is ques- tioned." The insertion in the body of a chattel mortgage, through the mistake of the scrivener, of the name of one person, as mortgagee, instead of another, as was intended by the parties, does not affect the validity of the mortgage as between the mortgagor and the person actually intended." b. Infants. — A chattel mortgage executed by an infant upon personal property owned by him ip voidable, not void. He may, at his option, avoid the same at any time before he becomes of age or within a reasonable time thereafter. This result is accom- plished by any act which manifests such a purpose, such as an unconditional sale and delivery of the property to a third per- son.^^ Thus, where an infant executes a chattel mortgage upon a chattel owned by him and on the same day sells and delivers the property to a purchaser, the title of the purchaser is superior to that of the mortgagee, unless the sale is also avoided by the infant.^^ c. Partnership. — One of two or more partners may, in the absence of fraud, execute a chattel mortgage upon firm property for the payment of a firm debt.^* But it seems that a mort- 9. Chandler ». Bunn, Hill & D. Transfer of Firm Property. — In Supp. 167. the absence of fraud, one member of 10. Croft I'. Brandow, 61 App. Div. a firm may, notwithstanding the pro- 247, 70 N. Y. Supp. 364. test of his partner, transfer all the 11. Chapin v. Shafer, 49 N. Y. property of the partnership, in eon- 407. sideration of the promise of the pur- 12. Chapin v. Shafer, 49 N. Y. chaser to pay its debts, though not 407. yet due. Graser v. Stellwagen, 25 13. Mablett v. White, 12 N. Y. 454; N. Y. 315. Schwarzscheld & S. Co. v. Matthews, Subsequent Ratification. — Where 39 App. Div. 477, 57 N. Y. Supp. 338 ; one partner executes a chattel mort- McClelland v. Remsen, 3 Abb. Dec gage of partnership property and the 74, 5 Abb. Pr., N. S., 250. other subsequently ratifies the mort- 42 Chattel Mortgages. gage given by one partner after dissolution does not transfer the legal title to the firm property.^* Where a mortgage is given by a partnership to secure future advances, it does not secure advances made after the dissolution of the partnership to the successors thereof. ^° d. JoiTvt Owners of Property. — One of two or more joint owners of personal property may mortgage his interest therein without the consent, concurrence or knowledge of the other.^° Where the mortgagee of the interest of one tenant in common causes the whole chattel to be sold by virtue of his mortgage, one who purchases and takes possession of the chattel at such sale, with notice of the rights of l^e other tenant in common thereof, is liable to the latter for the conversion of his interest therein. ^^ e. Joird Mortgagees. — Upon default in a chattel mortgage given to several mortgagees to secure the payment of several, debts, the mortgagees become tenants in common of the property. One of such tenants has no right to sell the entire property.^* Where the joint mortgagees are not partners, one cannot make any agreement with the mortgagor which will affect the rights of the other. Thus, an arrangement between the mortgagor and one of the mortgagees that the mortgagor may retain possession after default in the payment of an installment does not preclude the other mortgagee from taking possession of the property under the danger clause.^' Where a chattel mortgage appears by its terms to have been given as security to a second indorser of notes, it may be shown by parol that it was intended as security for all the indorsers on the notes and, upon such proof being made, it can be enforced by another indorser.^" Sec. 4. Corporate Mortgages. a. Statute. — Section 6 of the Stock Corporation Law pro- vides for mortgages given by stock corporations. Such statute gage, the latter cannot claim that it 16. Harris v. Wessels, 5 Hun 645. was not effectual to transfer the legal 17. Van Doren v. Baity, 11 Hun title to the property scheduled. Ken- 239. nedy v. National Union Bank of 18. Tyler v. Taylor, 8 Barb. 585. Watertown, 23 Hun 494. 19. Hanrahan v. Roche, 22 Alb. L. H. Husted V. Ingrahara, 75 N. Y. J. 134. 251. 20. Bainbridge v. Richmond, 17 Hun 15. Monnot v. Ibert, 33 Barb. 24. 391, aff'd, 78 N. Y. 618, mem. FoKM AND Validity, 43 applies to chattel as -well as real estate mortgages.^^ Its pro* visions are as follows : " In addition to the powers conferred hy the general corporation law, every stock corporation shall have the power to borrow money and contract debts, when neces- sary for the transaction of its business, or for the exercise of its corporate rights, privileges or franchises, or for any other lawful purpose of its incorporation; and it may issue and dispose of its obligations for any amount so borrowed, and may mortgage its property and franchises to secure the payment of such obligations, or of any debt contracted for said purposes. Every such mort- gage, except purchase-money mortgages and mortgages authorized by contracts made prior to May first, eighteen hundred and ninety-one, shall be consented to by the holders of not less than two-thirds of the capital stock of the corporation, which consent shall be given either in writing or by vote at a special meeting of the stockholders called for that purpose, upon the same notice as that required for the annual meetings of the corporation; and a certificate under the seal of the corporation that such con- sent was given by the stockholders in writing, or that it was given by vote at a meeting as aforesaid, shall be subscribed and acknowl- edged by the president or a vice-president and by the secretary or an assistant secretary, of the corporation, and shall be filed and recorded in the office of the clerk or register of the county wherein the corporation has its principal place of business. When authorized by like consent, the directors under such regulations as they may adopt, may confer on the holder of any debt or obli- gation, whether secured or unsecured, evidenced by bonds of the corporation, the right to convert the principal thereof, after two and not more than twelve years from the date of such bonds, into stock of the corporation; and if the capital stock shall not be sufficient to meet the conversion when made, the directors shall from time to time, authorize an increase of capital stock sufficient for that purpose by causing to be filed in the office of the secretary of state, and a duplicate thereof in the office of the clerk of the county where the principal place of business of the corporation shall be located, a certificate under the seal of the corporation, 21. New York Security & Trust Co. v. Saratoga Gas & Light Co., 88 Hun 669, 34 N. Y. Supp. 890. 44 Chattel Mortgages. subscribed and acknowledged by the president and secretary of the corporation setting forth, 1. A copy of such mortgage; or resolution of directors author- izing the issue of such bonds; 2. That the holders of not less than two-thirds of the capital stock of the corporation duly consented to the execution of such mortgage or resolution of directors authorizing the issue of such bonds by such corporation; 3. A copy of the resolution of the directors of the corporation authorizing the increase of the capital stock of the corporation necessary for the purpose of such conversion; 4. The amount of capital theretofore authorized, the propor- tion thereof actually issued and the amount of the increased capital stock. If the corporation be a railroad corporation the certificate shall have indorsed thereon the approval of the public service commis- sion having jurisdiction thereof. When the certificate herein provided for has been filed, the capital stock of such corporation shall be increased to the amount specified in such certificate." b. Consents. — A consent to mortgage the real and personal property of a stock corporation does not authorize a mortgage of its corporate franchise. Where, however, the realty and per- sonalty of a corporation are mortgaged, together with its fran- chise, though consent has not been procured as to the franchise, the mortgage will be deemed valid as to the real and personal property as to which the consent was given, but inoperative as to the mortgage of the franchise.^^ The consent of stockholders is not required for a purchase money mortgage.^' c. Who May Attach for Failure to Comply with Statute. — A mortgage upon corporate chattels, not executed in conformity with section 6 of the Stock Corporation Law, is invalid.^* This section seems to have been enacted primarily for the benefit of the stockholders. ^° But in order to take advantage of the invalid- 22. Lord v. Yonkers Fuel Gas Co., Stable Co., 140 App. Dlv. 495, 125 99 N. Y. 551. N. Y. Supp. 410. 23. Clement v. Congress Hall, 73 25. See In re New York Economical Misc. 519, 132 N. Y. Supp. 16. Printing Qc, 110 Fed. 514. 24. London Realty Co. v. Coleman FoEM AND Validity. 45 ity of the mortgage it is not necessary that the objection should be raised by a stockholder or creditor ; the defense is available to the corporation itself. The corporation is not estopped from asserting the defense on the theory that it cannot take advantage of its own wrong, or because it did not offer to return the con- sideration for the mortgage, where it does not appear that any consideration whatever was received by it.^° A general creditor of the corporation cannot attack a chattel mortgage executed by it on the ground that it was not executed as required by the stat- ute. ^^ Where a mortgagee of a joint stock association sued to recover the mortgaged chattels from a third person, it was held that the defendant could not defend on the ground that the con- sent of two-thirds of the stockholders had not been obtained, where the defendant did not claim to be a judgment creditor or a subsequent purchaser or mortgagee in good faith.^* d. Corporate Mortgage Operating as Preference. — A domestic stock corporation which is insolvent is prohibited by statute from executing a mortgage with intent thereby to give a preference.^* This statute applies to domestic, not to foreign corporations.^" 6. Mortgage by Railroad. — ' Subject to certain limitations and requirements, every railroad corporation has power, " From time to time to borrow such sums of money as may be necessary for completing and finishing or operating or improving its railroad, or for any other of its lawful purposes and to issue and dispose of its bonds for any amount so borrowed, and to mortgage its property and franchises to secure the payment of any debts con- tracted by the company for the purposes aforesaid, notwithstand- ing any limitation on such power contained in any general or special law. But no mortgage, except purchase-money mortgages, shall be issued by any railroad .corporation under this chapter or any other law without the consent of the public service com- mission, and the consent of the stockholders owning at least 26. London Realty Co. v. Coleman 27. Glover v. Ehrlich, 62 Misc. 245, Stable Co., 140 App. Div. 495, 125 114 N. Y. Supp. 992. N. Y. Supp. 410. But see State Bank 28. Nelson v. Drake, 14 Hun of Williamson v. Fish, 120 N. Y. 465. Supp. 365, holding that where no 29. Stock Corporation Law, § 66. stockholder objects, a trustee in bank- 30. Coats v. Donnell, 94 N. Y. ruptey cannot. 168. 46 Chattel Mobtgages. two-thirds of the stock of the corporation, which consent shall he in writing, and shall be given and certified ajid be filed and recorded in the office of the clerk or register of the county where it has its principal place of business, as provided in section six of the stock corporation law; or else the cons^t of the public service commission and the consent by their vot^s of stockholders owning at least two-thirds of the stock of the Corporation which is represented and voted upon in person or by proxy at a meeting called for that purpose upon a notice stating the time, place and object of the meeting, served at least three weeks previously upon each stockholder personally, or mailed to him at his post-office address, and also published at least once a week for three weeks successively in some newspaper printed in the city, town or county where such corporation has its principal office, and a cer- tificate of the vote at such meeting shall be signed and sworn to and shall be filed and recorded as provided by section six of the stock corporation law. When authorized by the stockholders' consent to any bonds made or issued under this section, the direct- ors, under such regulations as they may adopt, may confer on the holder of any such bonds the right to convert the principal thereof, after two and not more than twelve years from the date of the bond, into stock of the corporation at a price fixed by the board of directors, which may be either par or a price not less than the market value thereof at the date of such consent to such bonds; and if the capital stock shall not be sufficient to meet the conversion when made, the board of directors shall authorize an increase of capital stock sufficient for that purpose." '^ A mortgage given under this statute covers after-acquired property.^^ Though a railroad company may have exceeded its powers in purchasing canal boats, it cannot defeat the title of its mortgagee, on the ground that the purchase was ultra vires; nor can the mortgagee, who has sold the boats under the mortgage, excuse himself from crediting the proceeds, on that ground.^* 31. Railroad Law, § 8, subd. 10. 32. Piatt v. New York & Sea Beach The rolling stock of a railroad may R. Co., 9 App. Div. 87, 41 N. Y. Supp. be the subject of a chattel mortgage. 42. See also supra, the subdivision See imfra, the subdivision Rolling After-acquired Property, p. 28. Stodk, p. 37. 33. Parish v. Wheeler, 28 N. Y. 494. FoEM AND Validity. 47 f. Filing of Corporate Mortgage. — The requirements for tlie filing and refiling of certain corporate mortgages are in many respects different from those relating to mortgages executed by individuals. The questions relating to the filing and refiling of such mortgages are discussed in other chapters.** Sec. 5. Debt. a. In General. — The debt secured by a chattel mortgage is the principal subject of the transaction; the mortgage is but an incident thereto deriving its whole legal effect from the exist- ence of the debt.*' While there must be some consideration for a chattel mortgage,*" it is not essential that a debt exist indepen- dently of the mortgage. The parties may confine the remedy of the mortgagee strictly to the mortgage.*' The debt may be owed by one person and the mortgage be given by another.** A chattel mortgage need not be given for a definite sum, but may merely secure the indebtedness of a third person " now owing." *° A recital in a mortgage of the existence of a debt is prima facie evidence thereof, and this is so although the mortgage is not properly renewed.*" b. Future Advances. — A mortgage given to secure future advances is not fraudulent or void.*^ It is valid though not 34. See infra, the chapters Filing, and the members of a labor union a p. 58, and Refiling, p. 91. chattel mortgage was given to a third 35. Thompson v. Van Vechten, 27 party to secure a certain sum fixed N. Y. 568. as liquidated damages for a breach 36. See Look v. Comstock, 15 Wend. of the contract, such third party can- 244. not enforce the chattel mortgage as it Prior Mortgage Sufficient Consid- was without consideration as to him. eration, — Where a first mortgage Flannell v. O'Brien, 43 App. Div. 534, contains a provision that if it shall 60 N. Y. Supp. 101. prove ineffectual for the purposes in- 37. Matthews v. Sheehan, 69 N. Y, tended, a, second shall be executed in 585 ; Blake v. Corbett, 120 N. Y. 327. its place, the consideration of the See infra, the subdivision Action to first is sufficient to support a second Recover Deht, p. 146. made in pursuance of such provision. 38. Blake v. Corbett, 120 N. Y. 337. Hinks V. Field, 14 N. Y. Supp. 247, 39. Blake v. Corbett, 120 N. Y. 327. 37 St. Rep. 724, aff'd, 129 N. Y. 633, 40. Kane v. Stark, 15 Week. Dig. mem. 509. Ng Consideration. — Where, pursu- 41. Brown v. Guthrie, 110 N. Y. ant to a contract between an empl«?yer 435. 48 Chattel Mortgages. operative, as a general rule, until the advances are made. In the meantime, the property is exposed to the claims oi third parties.*^ Frequently mortgages are given to secure both a present indebtedness and advances to be subsequently made. Such a mortgage is not fraudulent and may be enforced for the amount actually due.** When free from fraud, it is valid, not only as between the parties, but as against creditors and other third parties.** But is valid only to the extent of advances made in good faith before a creditor or other third party acquires a sub- sequent title to or lien upon the property.*" It has been held that a mortgage for future advances or liabilities will cover such only to the amount specified in the mortgage.*' It is not necessary, however, that any amount be specified in such a mortgage.*^ Parol evidence is admissible to show the purpose and intent with which a chattel mortgage was executed, and, though, upon its face, it appears to be for the payment of a specified sum of money, it may be shown that its purpose was security for future advances or liabilities.** Thus, where the consideration stated in a mortgage was a present absolute indebtedness of $1,000, and no such indebtedness existed, the mortgage was sustained, as against creditors of the mortgagor, by showing that the considera- tion of the mortgage was the indorsement by the mortgagee of the mortgagor's note for $1,000 for the accommodation of the latter, and, upon his failure to raise money thereon, two notes 42. Brown v. Guthrie, 110 N. Y. 435. 43. Miller v. Lockwood, 32 N. Y. Existence of Liability. — To give a 293; Westcott v. Gunn, 4 Duer 107; chattel mortgage for future advances Fairbanks v, Bloomfield, 5 Duei. 434; a lien on the property as against a Carpenter v. Blate, 1 E. D. Smith bono /ide purchaser or one holding the 491; Walker v. Snediker, Hoff. Ch. position of a judgment creditor, proof 145 ; Hendricks v. Robinson, 2 Johns, of the existence of an outstanding Ch. 283. See also Burrit v. ShefFer, 13 liability of the kind mentioned in the N. Y. Supp. 849, 37 St. Bep. 591. condition is necessary. Marsh v. 44. Brown v. Kiefer, 71 N. Y. Kinney, 11 Week. Dig. 144. 610. Advances Iilade to Successors of 45. Carpenter v. Blate, 1 E. D. Firm. — Where a mortgage is given Smith 491. See also Craig v. Tappin, by a partnership to secure future 2 Sandf. Ch. 78. . advances, it cannot be made eflFeetual 46. Monnot v. Ibert, 33 Barb. 24. io protect advances made or liabilities 47. Miller v. Lockwood, 32 N. Y. incurred for their successors, after a 293. dissolution of the firm. Monnot v. 48. McKinster v. Babcock, 26 N. Y. Ibert, 33 Barb. 24. 378. FoEM AND Validity. 49 for $500 were substituted which the mortgagee also indorsed, and by showing that the purpose of the mortgage was to secure any substituted liabilities.*" c. IncLccurate Statement of Debt. — A mortgage is not neces- sarily fraudulent and void because the indebtedness is over- stated. The mortgage is good for the amount actually due unless there is actual fraud in the transaction."" But it is always advisable to state fairly and plainly the true consideration of the mortgage, for a failure to do so renders the mortgage open to suspicion."^ If the parties are guilty of fraud the mortgage is not valid, even to the extent of the just indebtedness."^ This question of fraud is further treated in another place' in the work in connection with the discussion of fraudulent mortgages."* d. Parol Evidence to Explain. — Between the parties to a chattel mortgage, it generally cannot be varied or contradicted by parol evidence. If a mistake has been made in the mortgage as to the indebtedness of the mortgagor, the remedy is a reformation in a court of equity."* Parol evidence is admissible, in some cases, as where the mortgage is ambiguous."" The admissibility of parol evidence to show that a chattel mortgage was given to secure future advances is discussed in another section."* Sec. 6. Description of Property. a. In General. — Considerable care must be observed in cor- rectly describing the chattels covered by the mortgage. Only Earlier Cases. — In Divver v. Mc- 49. McKinster v. Babcock, 26 N. Y. Laughlin, 2 Wend. 596, it was held 378. that, where nothing appears in the 50. Miller v. Lockwood, 32 N. Y. mortgage to show that it was in- 293; Frost v. Warren, 42 N. Y. 204; tended as a security for advances to Marsden v. Cornell, 62 N. Y. 215. be made, the mortgage is no security 51. McKinster v. Babcock, 26 N. Y. for future advances made upon the 378. strength of a parol arrangement. In 52. Levy v. Hamilton, 68 App. Div. Walker v. Snediker, Hoff. Ch. 145, 277, 74 N. Y. Supp. 159. the court said : " It has been settled 53. See infra, the subdivision Ex- in equity by repeated decisions, that cessive Statement of Indebtedness, a mortgage to secure future as well p. 121. as present responsibilities is good. 64. Patchin v. Pierce, 12 Wend. 61. But the better opinion, if not the de- 55. See Dodge v. Potter, 18 Barb, cided law, is, that the mortgage must 193 ; Ripley v. Larmouth, 56 Barb, express the object. It is certain that 21. See also Wait's Law and Practice it cannot be rendered available for (7th ed.), vol. 2, p. 772. future liabilities by a subsequent 56. See supra, the subdivision parol agreement." Future Advances, p. 47. 50 Chattel Moetgages. such property as is mentioned in the mortgag^ is transferred thereby. Property to be subsequently acquired /or produced by the mortgagor will not be subject to the mortgage unless the mortgage refers to such property.'' Where a lease of a farm reserved to the landlord a lien on butter, cheese and grain to be produced, it was held that hay was not subject to the mortgage."* Where a mortgage of a sugar refinery, and a chattel mortgage given at the same time, included all the machinery and effects therein but did not specifically include the sugars and syrups, it was held that the chattel mortgage did not cover such sugars and syrups."' Where a mortgage was given on " the entire stock in trade of every name and nature, now in the store No. 379 Broad- way," it was held that the notes and debts due the mortgagors were not subject to the mortgage."" b. Indefinite. — As a general rule, the description will suffice if it enables third persons to identify the property when aided by the inquiries which the mortgage indicates."^ Where a lease of a hotel contained a provision that the lessee mortgaged to the lessor all of his chattels upon the premises, " an inventory whereof is to be made and annexed," it was held that the security was good though no inventory was actually annexed to the instrument.'^ Where a mortgage covered " all the drygoods, boots and shoes, millinery goods, and gentlemen's furnishing goods, and stock in trade, then in the store occupied by " the mortgagors, it was held that the description, though gen- 57. Van Vechten v. McKone, 69 58. Briggs v. Austin, 8 N. Y. Supp. Hun 510, 23 N. Y. Supp. 428. 786, 29 St. Rep. 245. Mortgage Not Covering After- 59. Thurber v. Minturn, 18 Week, acquired Property. — A chattel mort- Dig. 25. gage covering goods and fixtures 60. Kemp v. Cornley, 3 Duer 1. " herein extant in said shop No. 383 61. Van Vechten v, McKone, 69 Hun Lafayette street" does not cover 510, 23 N. Y. Supp. 428; Matthews v. after-acquired property. Ferraro v. Sniffen, 10 Daly 200. Stramello, 134 N. Y. Supp. 535. A description is sufficient as against Purchase Money Mortgage. — One strangers or creditors, if it gives who gives a purchase money mortgage notice of the property intended to be cannot defeat the lien on the ground conveyed. Dunning v. Stearns, 9 that he selected the chattels from Barb. 630. samples and that those delivered were 62. Van Heusen V. Radeliflf, 17 N. Y. not the chattels purchased. Wallace 580. i>. Leoni, 104 N. Y. Supp. 392. FoEM AysB Validity. 61 eral, could be rendered sufficiently definite by evidence of the facts as to the goods in the store at the time and that the mortgage would convey v^hatever, in fact, answered to the description/' Where a mortgage covered certain stone and the mortgagor's goods in his store, the description, after fully pointing out the stone mortgaged, proceeding : " and all other stones belonging to me, and all other goods and chattels, now in my store, &c., all in the town of Saugerties," it was held that it was sufficient to embrace all the goods of the mortgagor in the store at the time.** Where the property mortgaged was described as " — bushels of ashes now in the ashery in the possession of " the mortgagor, it was held that the mortgage was valid and that parol evidence was admissible to show the quantity intended to be conveyed."" A chattel mortgage describing all the property of the mortgagor of certain kinds " now being and remaining " in his possession is sufficient.** The following description has been held sufficient : " The undivided one-half part of, in and to all of the fixtures, furniture and personal property located in or upon the premises, or now, or heretofore used in connection with the hotel known as Congress Hall, and the premises above described, which fixtures and personal property were owned by Clement and Cox in common." "'' On the other hand, it has been held that an instrument describ- ing the mortgaged property as " ten of my carriage horses now in my possession in my stable 163 and 165 West 132d St." does not sufficiently describe the property so as to be valid as against a creditor levying upon the same.*' Where a mortgage covered " all personal property whatever " owned by the mort- gagors and " all growing crops of all kinds," it was held that the mortgage was too indefinite to cover rents of the premises.*' Where a mortgage covered not only the scythes, iron, steel and coal then owned by the mortgagors, but also " all scythes, iron, steel and coal which may be purchased in lieu of the aforesaid 63. Conkling v. Shelley, 38 N. Y. 67. Clement v. Congress Hall, 72 360. Misc. 519, 132 N. Y. Supp. 16. 64. Russell v. Winne, 37 N. Y. 591. 68. McDonald v. City Trust, Safe 65. Dunning v. Stearns, 9 Barb. Deposit and Surety Co., 32 Misc. 644, 630. 66 N. Y. Supp. 475. 66. In re Beebe, 126 Fed. 853. 69. Riley v. Sexton, 32 Hun 345. 52 Chattel Mortgages. property," it was held that it was, as to propeky to he suhse- quently acquired, void for uncertainty."' Likewise, where a lease provided that the lessor should have a lien, as security for the rent, upon all the goods, wares, chattels, impjlements, fixtures, tools and other personal property which were or might be put on the demised premises it was held that it was void for uncertainty.''"' c. Schedule. — A mortgage and a schedule accompanying the same are to be read together,'^ though, it may be that, if there is an actual conflict between the body of the mortgage and an annexed schedule, the mortgage will control. ''' Where a chattel mortgage described certain property as " all machinery, tools, implements, appliances and personal property, and all other goods and chattels mentioned in the schedule, hereto annexed, and now in the buildings and on the premises situated in the town of Cornwall, county and. State aforesaid," and the schedule, which contained a minute list of articles, stated that it was an " inventory of personal property mentioned and referred to in the annexed mortgage," it was held that the general words of the mortgage were to be limited and restricted to the articles mentioned in the schedule, and that the mortgage did not cover other articles which were in the buildings and premises referred to in the mortgage.'* A mortgage covering "all the glassware and other goods men- tioned in the schedules hereunto annexed," does not include glass- ware not mentioned in the schedule.'** d. Parol Evidence to Explain. — Where the description of the mortgaged chattels is ambiguous, parol evidence is sometimes admissible to identify the property intended to be covered by the mortgage.'^ Thus, where a chattel mortgage described, among other property mortgaged, "one four-horse post coach called ' Steuben ' and another called ' Mayday ' at Hornellsville employed in staging," and it appeared that the mortgagor at the time the mortgage was executed, owned and possessed only two four-horse coaches, one called " Conhocton " and the other called " Mayday " and that there was no coach called " Steuben " at 70. Otis V. Sill, 8 Barb. 102. 74. Broadhead v. Smith, 55 Hun 71. Buskirk v. Cleveland, 41 Barb. 49*9, 8 N. Y. Supp. 760. 610. 74a. J. & M. Haffen Brewing Co., 72. Edgell V. Hart, 9 N. Y. 213; 78 Misc. 366, 138 N. Y. Supp. 426. Broadihead v. Smith, 55 Hun 499, 8 75. Galen v. Brown, 22 N. Y. 37; N. Y. Supp. 760. (^onkling v. Shelly, 28 N. Y. 360; 73. Matthews v. SniiTen, 10 Daly Dunning v. Stearns, 9 Barb. 630; 200. Dodge v. Potter, 18 Barb. 193. FoEM AWD Vaiiditt, 53 Homellsville or employed there in staging, it was held that parol evidence was admissible to show that the coach " Conhocton " was intended to be included in the mortgage instead of the " Steu- ben." '* And where a mortgage described the property as 11,000 feet of pine lumber in a certain shop, and it appeared that there was not over 2,000 feet of lumber in such shop at the time the mortgage was executed, it was held that parol evidence was admissible to show that other lumber owned by the mortgagor was intended to be covered by the mortgage." Sec. 7. Validity of Mortgage. a. In Oeneral. — Many questions concerning the validity of mortgages are discussed in other places. Thus, the effect of a failure to file,'* or refile,'° a chattel mortgage, is discussed in separate chapters of this work. A chapter is also devoted to fraudulent mortgages.'" b. By What Law Determined. — As a general rule, a contract valid where executed and to be performed is valid everywhere, and a lien valid in the State where created is enforceable in all States where the property thereafter comes.*^ Thus, a mortgage upon railroad property executed in Connecticut by a Connecticut railroad company is valid if filed according to the Connecticut law and need not be filed in this State, though some of its prop- erty is here situated, where it is not showu that the mortgaged property was in this State at the time of the execution of the mortgage.*^ The validity of a mortgage on a vessel is to be governed by the law of the State where the vessel was registered, the mortgage made, and the parties resided.'^ If the mortgagor temporarily takes the mortgaged property into another State, where it is seized and sold under an execution against the mort- gagor issued upon a judgment there recovered, in an action by the mortgagee against the constable for the conversion of the property, the nature, construction, obligation and effect of the 76. Dodge v. Potter, 18 Barb. 193. 81. Nichols v. Mase, 35 Hun 640, 77. Galen v. Brown, 23 N. Y. 37.' aff'd, 94 N. Y. 160. 78. See infra, p. 58. 82. Nichols v. Mase, 94 N. Y. 160. 79. See infra, p. 91. 83. Watson v. Campbell, 38 N. Y. 80. See infra, p. 106. 153. 54 Chattel Moetgages. mortgage are to be determined by the law of this State.** Where the mortgagor converted the mortgaged property after default and removed it to Canada, where it was sold under such circum- stances that by the Canadian law the purchaser acquired a good title, it was held that the transaction was governed by our law, and the mortgagor recovered against the purchaser.*' A chattel mortgage valid where executed and where it is to \>e performed, will not be deemed usurious because it offends the usury law of another State though the mortgaged property is in such State.*" But where the law and policy of the State where the property is located have provided a different rule for its transfer, such rule is binding.*' And where a creditor of the State where the prop- erty is located has levied upon property of his debtor, his rights will not be inferior to a chattel mortgage made and to be per- formed in another State, which is valid in such State, but invalid in the State where the property is located.*' Thus, where the owner of property who lived in New York State executed a chat- tel mortgage upon property then located in Illinois, but within two days thereafter and before the mortgagee could cause the mortgage to be filed in Illinois, a creditor of the mortgagor attached the property and subsequently sold the same, it was held by the courts of this State, in an action by the mortgagee against the creditor for conversion, that the mortgagee could recover as the transaction was governed by the law of this State. But the Supreme Court of the United States held that this was error, that, as the attachment was valid by the law of Illinois, it was valid in this State, and that the transactions were to be governed by the law of Illinois.*' c. Usurious Mortgage. — A chattel mortgage to secure a usuri- ous loan is void.'" If the mortgagee takes the goods under the 84. Martin v. Hill, 12 Barb. 631. 89. Green v. Van Buskirk, 74 U. S. 85. Edgerly v. Bush, 81 N. Y. 199, 139. rev'g 16 Hun 80. 90. Leslie v. Hoffman, 1 Edm. Sel. 86. Whitman v. Conner, 8 J. & S. Cas. 475. 339. Transaction Held Usurious.— 87. Keller v. Paine, 107 N. Y. 83. Where, in an action upon certain 88. Bearing v. McKinnon Dash & notes, it appeared that the plaintiff Hdwe. Co., 165 N. Y. 78; Greene v. had agreed to lend one Green money VanBuskirk, 74 U. S. 139. See also at 10 per cent, interest on his giving Whitman v. Conner, 8 J. & S. 339. to the plaintiff the defendant's note ToEM AND Validity. 55 mortgage, the mortgagor can recover the same or tkeir value.'^ If the mortgagee proceeds to foreclose the usurious mortgage, an injunction will lie for the restraint thereof.'^ While the defense of usury is personal, in that a mere stranger cannot attack the mortgage upon that ground,'* any person hav- ing a lien upon the property may assert the invalidity.'* An execution creditor of the mortgagor may assail the mortgage for usury.'° In an action by a mortgagee against a sheriff for the conversion of the goods, the sheriif may show the usurious charac- ter of the transaction.'" But the mortgagor, after selling the property to a third person, cannot sustain an action to cancel the mortgage and the notes secured thereby and to enjoin a sale in enforcement thereof, on the ground of usury ; nor can a purchaser of the property expressly subject to the mortgage avoid the mort- gage on such ground." d. Mortgage to Compound Crime. — A chattel mortgage is void where it is given and received in compromise of a felony. And where persons knowingly advance means to aid the accused to compromise the offense, and are present and assist in the nego- tiation, a mortgage taken by them based upon such consideration is void. But where the assignee of such a mortgage takes the mortgaged property, and the mortgagors are not connected there- with, they are not liable.'* e. Delivery of mortgdge. — A mortgage has no validity until a delivery thereof is made."* If the attorney for creditors receives for the amount, and Green then ex- acting as the agent of the original changed notes with the defendant mortgagee, seized the mortgaged prop- giving him a chattel mortgage as erty together with property not in- security and borrowed the money eluded in the mortgage. Burghen v. from the plaintiff at 10 per cent, in- Purdy, 27 App. Div. 460, 50 N. Y. terest on the security of the defend- Supp. 546. ant's note, it was held that the trans- 92. Ehrgott v. Forgotston> 17 N. Y. action was usurious. Blodgett v. Supp. 3S1, 43 St. Rep. 60. Wadhams, Hill & D. Supp. 65. 93. Cavan v. Kelly 3 Alb. L. J. 373. oi A 1 1 I?- „i, r, r<„™ oQfi. 9*- Thompson v. Van Vechten, 37 91. Aekley v. Finch, 7 Cow. 290; jj- y sgg Leslie v. HofFmau> 1 Edm. Sel. Cas. ^s.' Cavan v. Kelly, 3 Alb. L. J. 373. 475. 96. Dix v. Van Wyck, 2 Hill 523. The mortgagee is liable to the mort- 97. James v. Oakley, 1 Abb. Pr. 334 gagor for the conversion of the prop- p/'ago^"""^* "" '^^'^ ^''*^"^' ^^ '^°^- erty where he pretended to assign gg^^ ' ^ ^^^^ g^ ^^^ ^^^ ^^^ the mortgage to a third party who, jj. y. Supp. 913. 56 Chattel Moetgages. a mortgage from their debtor, without the knowledge or assent of the creditors, the latter may ratify the transaction by subse- quent assent and enforce the mortgage. Where a debtor makes at the same time several mortgages upon the same chattels to secure several creditors, the refusal of one of the creditors to accept it does not impair the validity of the mortgages accepted by the other creditors."" f. Alteration of Mortgage. — The fact that an alteration was made in a chattel mortgage after its execution and delivery will not divest the title of an innocent purchaser acquired under the instrument as made.^°° g. Confusion of Goods. — A mortgagee does not lose his title to the mortgaged property on account of a mixing thereof witl\ similar goods by the mortgagor, where he does not consent to the confusion. ^"^ And the fact that a mortgagor, with the knowledge and permission of the mortgagee, mixes articles covered by the mortgage with subsequently-acquired property, so that some of the articles covered by the mortgage cannot be distinguished from those subsequently acquired, does not render the mortgage Invalid as to such of the articles covered by it as can be identified and distinguished.^"^ 99. Brown v. Piatt, 8 Bosw. 324. 101. Dunning v. Stearns, 9 Barb. 100. Stearns v. Oberle, 47 Misc. 349, 630. 94 N. Y. Supp. 37. 102. Caring v. Richmond, 28 Hun 25. Chattel Moktoagbs. J?" CHAPTER V. FILING. Sec. 1. Statute. a. In C!«neTal. b. Mortgages on Canal Boats. c. Purpose of Statute. d. Construction of Statute. 2. Necessity of Filing. a. In General. b. Instruments Not Operating as Mortgage. c. Property Not "Goods and Chattels." d. Mortgage of Beal and Personal Property. e. Corporate Mortgages. 3. Change of Possession in Lieu of Filing. a. In GeneraL b. Constructive Possession. c. Symbolic Possession. d. Delivery of Part of Mortgaged Chattels. 4. Time of Filing. a. In General. b. Priority of Mortgages Filed at Same Time. 5. Place of Filing. a. Statute. b. Construction of Statute. e. Effect of Erroneous Statement of Residenefc d. Partnership Mortgage. e. Mortgage by Joint Stock Association. t. Mortgage of Vessel. g. Mortgage of Canal Boat. h. Mortgage of Liquor Tax Certificate 6. Filing of Portion of Contract. 7. The Acts of Filing and Entry. a. Statute. b. Absence of Officer. c. Vacancy in Office. d. Omision of Officer. 8. Payment of Fees. 9. Removal of Mortgage. 10. Effect of Failure to File. a. As to Third Parties. b. As Between the Parties. E8 Chattel Moetgages. Sec. 11. Who May Attack Mortgage for Failure to File. a. In General. b. Creditor in General. c. Creditor with Invalid Execution.^ d. Creditor with Knowledge of Mortgage. e. Purchaser or Mortgagee. f." Purchaser or Mortgagee from Third Party, g. Purchaser or Mortgagee with Notice of Unfiled Mortgage, h. Purchaser or Mortgagee on Account of Precedent Debt, i. Purchaser at Judicial Sale, j. Assignee of Subsequent Mortgagee, k. Subsequent Lienors. 1. Assignee for Creditors, m. Receiver in Supplementary Proceedings, n. Receiver of Corporation, o. Trustee or Receiver in Bankruptcy. 12. Effect of Transfer of Chattels. a. To Mortgagee. b. To Bona Fide Purchaser. c. To Assignee for Creditors. Sec. 1. Statute. a. In General. — Article X of the Lien Law contains the statutory enactments relative to the filing of chattel mortgages. Section 230 of said law provides as follows : " Every mortgage or conveyance intended to operate as a mortgage of goods and chattels or of any canal boat, steam-tug, scow or other craft, or the appurtenances thereto, navigating the canals of the State, which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, is absolutely void as against the creditors of the mort- gagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, is filed as directed in this article. This article shall not apply to agree- ments creating liens upon merchandise or the proceeds thereof for the purpose of securing the repayment of loans or advances made or to be made upon the security of said merchandise and the pay- ment of commissions or other charges provided for by such agree- ment, where the conditions specified in section 45 of the Personal Property Law are complied with." b. Mortgages on Canal Boats. — The Lien Law contains an additional provision relative to the filing of chattel mortgages on canal boats. This provides as follows : " Every mortgage upon Filing. 59 a canal boat or other craft navigating the canals of this State, filed as provided in this article, shall be valid as against the creditors of the mortgagor. and against subsequent purchasers or mortgagees in good faith, as long as the debt which the mortgage secures is enforceable. From the time of such filing, every such mortgage shall have preference and priority over all other claims and liens, not existing at the time of such filing." ^ c. Purpose of Statute. — The object of the statute requiring mortgages of personal property to be filed is to prevent imposition upon subsequent purchasers and mortgagees. While the chattels mortgaged remain in the hands of the mortgagor, persons dealing ■with him respecting them are led to believe that he is the owner, and may thus be defrauded, or at least disappointed.^ Upon several occasions, the purpose of the statute has been stated by the courts in other language.' 1. Lien Law, g 336. 8. Meech v. Patchin, 14 N. Y. 71; Gregory v. Thomas, 80 Wend. 17. 3. To Protect Creditors. — The ob- ject of the statute requiring the fil- ing of chattel mortgages is to pro- tect creditors against the misleading effect of the goods remaining in the possession and control of the debtor after they have been secretly trans- ferred to another person. Vreeland V. Pratt, 42 St. Rep. 582, 17 N. Y. Supp. 307. See also Commercial Bank of Rochester v. Davy, 81 Hun 200, 30 N. Y. Supp. 718. It was the plain purpose of the statute to require publicity to be given to chattel mortgages for the protection of the claims of persons mentioned therein. It is undoubt- edly true that one and perhaps the most important purpose of the act was to protect persons giving credit to the mortgagor in ignorance of the existence of a mortgage upon his property. But the legislative policy was broader than this single pur- pose. Karst V. Gane, 136 N. Y. 321. Secret Transfers. — It was not the design of the statute to annul securi- ties for honest debts, but to defeat secret and colorable transfers, by re- quiring all instruments in the nature of chattel mortgages to be made mat- ters of public record. The purpose of the act was not prohibitory but remedial. Frost v. Mott, 34 N. Y. 253. To Give Public Notice of the Lien. — The object of the original filing of the mortgage is to give public notice of the lien, thereby affixing to the property mortgaged, as it were, an ear-mark, indicating to all persons who would purchase it the existence of the lien; and this, not only while remaining in the hands of the mort- gagor, but in whose hands soever it may be. Dillingham v. Bolt, 37 N. Y. 198. Chattel mortgages were recognized at common law and the statute only intervenes to declare that such secur- ity shall not be good, as against sub- sequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof is filed. Baumann V. Post, 26 Abb. N. C. 134, 16 Daly 385, 12 N. Y. Supp. 213. 60 Chattel Moetgages. d. Construction of Statute. — In order to maintain the validity of a chattel mortgage as against creditors and subsequent pur- chasers and mortgagees in good faith, there must be a strict and rigid observance of the statutory requirements.* If not properly filed, the mortgage is void as to such persons without any reference to fraud or good faith on the part of the mortgagee." But when filed, it is good as against a hona fide purchaser who searches for but fails to find the mortgage. ° Sec. 2. Necessity of Filing. a. In General. — All mortgages of goods and chattels are re- quired to be filed except where the mortgagee takes possession of the mortgaged property.' The statute goes further; it requires not only the filing of mortgages, but also the filing of a " con- veyance intended to operate as a mortgage of goods and chattels." This requirement is without any modification or qualification arising out of the nature or condition of the property, such as its bulk, difficulty or even impossibility of a change of possession by removal or otherwise, or any other like consideration or excuse. In these cases, though it affords a plausible reason for omitting to accompany the mortgage with an actual change of possession, it affords no excuse for a failure to file the mortgage,* b. Instruments Not Operating as Mortgage. — The distinction between chattel mortgages and other instruments has already been treated, and the necessity of filing such other instruments dis- cussed to a certain extent.* An absolute bill of sale need not be filed," unless the transfer was intended to operate as a mortgage.^^ A pledge of chattels is not required to be filed.^^ A provision in 4. Industrial Loan Assoc, v. Saul, 10. Preston v. Southwick, 115 N. Y. 34 Misc. 188, 68 N. Y. Supp. 837. '^^^■ 5. Niagara County Bank v. Lord, „"-«?'"fj*°'' ''■^'*^*^^,^''^J^4^•J• „ ^ 139; Sheldon «. McFee, 316 N. Y. 618; 33 Hun 557. Tyler v. Strang, 21 Barb. 198. 6. Kribbs v. Alford, 130 N. Y. 519. FiUng of Bill of Sale Alone.— If a 7. See infra, the subdivision mortgage is in the form of a bill of Change of Possession in Lieu of, p. sale with a separate defeasance, the 63. filing of the bill of sale alone is suf- 8. Eoy V. Birdseye, 5 Denio 619. ficient to satisfy the statute. Pres- 9. See supra, the chapter Dis- ton v. Southwick, 115 N. Y. 139. tinguished from Other Contracts, 12. Haskins v. Kelly, 1 Abb. Pp., ?■ 6. N. S., 63, 1 Kob. 160. Filing. 61 a lease reserving a lien on property to be grown or placed on the premises by the tenant, frequently operates as a chattel mortgage, and the lease must be filed." An agreement contained in a lease of real property that, in case the lease shall be terminated before a certain date, the erections placed upon the leased land .shall become the property of the lessor, does not partake of the character of a chattel mortgage and need not be filed as such, even though it operates upon personal property.^* A lease of chattels for a specified rent vs^ith an agreement that if the lessee should punctu- ally pay the rent for a certain number of months the lessor would give a bill of sale thereof to the lessee need not be filed as a chattel mortgage.^" c. Property Not " Ooods and Chattels." — Only instruments affecting " goods and chattels " are required to be filed.^' Thus a mortgage of a chose in action, such as a liquor tax certificate,^' a lease of real estate,^' or a mortgage,^' is not affected by the statute. Real estate purchased for partnership purposes is per- sonal property but a mortgage thereon executed by one partner is not a mortgage on " goods and chattels." "" A mortgage upon the contingent interest of an attorney in a litigation need not be filed to preserve its validity."^ An agreement to give a mortgage upon a vested interest in personal property, not reducible to possession until the death of a third person, need not be filed as a chattel mortgage for the statute 13. See supra, the subdivision property and chattels." Niles v. Lease Reserving Lien, p. 21. Mathusa, 162 N. Y. 546. 14. Niagara Falls, etc., Co. v. 17. Niles «. Mathusa, 162 N. Y. 546. Schermerhorn, 132 App. Div. 442, 18. Booth v. Kehoe, 71 N. Y. 341. 117 N. Y. Supp. 10. Leasehold Interests. — A chattel 15. Neidig v. Eifler, 18 Abb. Pr. mortgage covering a lease for ten 353. Such an instrument is a con- years need not be filed. The words ditional sale and should be filed as " goods and chattels " do not cover such. See infra, Conditional Sales leasehold interests. State Trust Co. — Filing, p. 221. v. Casino Co., 19 App. Div. 344, 46 16. Chester v. Jumel, 5 N. Y. Supp. N. Y. Supp. 492. 809j rev'd on other grounds, 125 19. Harrison v. Burlingame, 48 Hun N. Y. 237. 212 ; Baxter v. Gilbert, 12 Abb. Pr. 97. " The drafter of the Chattel Mort- 20. Tarbel v. Bradley, 7 Abb. N. C. gage Act, when confining its opera- 273. tion to goods and chattels, had the 21. Chester v. Jumel, 5 N. Y. Supp, clear distinction in mind which has 809, rev'd on other grounds, 125 always existed between personal N. Y. 237. 62 Chattel Moetgages. requires the filing only of mortgages upon personalty which is capable of delivery/" d. Mortgage of Real and Personal Property. — A mortgage covering both real and personal property (excepting certain cor- porate mortgages) should be recorded as a real estate mortgage and also filed as a chattel mortgage.'^ But an omission to file as a chattel mortgage, though it may render the mortgage ineffectual as to the personalty, does not affect its lien upon tli3 realty.^* e. Corporate Mortgages. — By virtue of the provisions of sec- tion 231 of the Lien Law, mortgages creating a lien upon real and personal property, executed by a corporation as security for the payment of bonds issued by such corporation, or by any tele- graph, telephone or electric light corporation, and recorded as a mortgage of real property in each county where such property is located or through which the line of such telegraph, telephone or electric light corporation runs, need not be filed or refiled as chattel mortgages.^" 22. Tilden V. Tilden, 86 Miac. 673, 67 N. y. Supp. 864. 23. Chemung Canal Bank v. Payne, 164 N. Y. 252; Stewart v. Beale, 7 Hun 405, aif'd, 68 N. Y. 629, mem.; State Trust Co. v. Casino Co., 19 App. Div. 344, 46 N. Y. Supp. 492; Fitzgerald v. Atlanta Home Ins. Co., 61 App. Div. 350, 70 N. Y. Supp. 552 ; Groodhue V. Berrien, 2 Sandf . Ch. 630; State Bank of Williamson v. Fish, 120 N. Y. Supp. 365. Agreement That Personalty Shall Be Considered Realty. — While the mortgagor and mortgagee may agree as between themselves whether prop- erty shall be considered as real or personal so far as it affects their personal interests, they cannot by the agreement alter the nature of the property so as to affect the rights of other persons and so as to render nugatory the provisions of law re- lating to the filing of such mort- gages for the protection of other creditors and persons interested. Matter of Munson, 70 Misc. 461, 128 N. Y. Supp. 1106. 24. Chemung Canal Bank v. Payne, 164 N. Y. 252; Hardin v. Dolge, 46 App. Div. 416, 61 N. Y. Supp. 753. See also State Trust Co. v. Casino Co., 19 App. Div. 344, 46 N. Y. Supp. 492. 25. Piatt I). New York & Sea Beach R. Co., 9 App. Div. 87, 41 N. Y. Supp. 42 ; Guaranty Trust Co. v. Troy Steel Co., 33 Misc. 484, 68 N. Y. Supp. 915; Robson v. Dailey, 130 N. Y. Supp. 1036. See also Hoyle v. Plattsburgh & Montreal E. Co., 54 N. Y. 314. " Electric Light Company." — A gas and electric light company is in- cluded by the words : " Any . . . electric light . . . corporation." New York Security & Trust Co. v.. Saratoga Gas & Light Co., 88 Hua 569, 34 N. Y. Supp. 890. Filing. 63 The statute, as now consolidated, includes all corporations, generally, and refers particularly to telegraph, telephone and electric light corporations, which would seem to be included necessarily within the general scope of the preceding portion of the section/* The word " bonds " as used in this statute, by virtue of the provisions of section 35 of the General Construction Law providing that words in the plural number include the singular, includes a single bond, so as to bring a mortgage securing such a bond within the provisions of the statute."' The term " real property " as used in the above statute is defined by section 290 of the Real Property Law and thus " includes lands, tene- ments and hereditaments and chattels real, except a lease for a term not exceeding three years." ^* Thus, a mortgage covering a lease for ten years and personal property is within this statute and need not be filed or refiled as a chattel mortgage.** Sec. 3. Change of Possession in Lieu of Filing. a. In General. — According to the express language of section 230 of the Lien Law, it is not necessary to file a chattel mortgage where it is accompanied by an immediate delivery and a continued change of possession of the things mortgaged.^" There is authority to the effect that, where the property is in the hands of a third person, an immediate delivery is not necessary as a substitute for filing.'^ Whether there has been a change of possession is gen- erally a question for the jury.** The question of the change of 26. Clement v. Congress Hall, 72 30. Siedenbach v. Riley, 111 N. Y. Misc. 519, 132 N. Y. Supp. 16. 560; Tedesco v. Oppenheimer, 15 Compare State Trust Co. v. Casino Misc. 522, 37 N. Y. Supp. 1073; Co., 5 App. Div. 381, 39 N. Y. Supp. Lee v. Huntoon, Hoff. Ch. 447; 258. Knapp v. Alvord, 10 Paige 205. 27. Clement v. Congress Hall, 78 At common law possession of the Misc. 519, 132 N. Y. Supp. 16. mortgaged chattels by the mortgagee 28. Westchester Trust Co. v. Hobby was essential to the validity of the Bottling Co., 102 App. Div. 464, 92 mortgage. There is nothing in the N. Y. Supp. 482, aff'd, 185 N. Y. 577, statute which prohibits the mottgagee mem. from filing his mortgage and hav- 29. State Trust Co. v. Casino Co., ing possession as well. Lathers v. 5 App. Div. 381, 39 N. Y. Supp. 258; Hunt, 16 Daly 135, 9 N. Y. Supp. 404. Westchester Trust Co. v. Hobby 31. Goodwin v. Kelly, 42 Barb. 194. Bottling Co., 102 App. Div. 464, 92 See also Nash v. Ely, 19 Wend. 523. N. Y. Supp. 482, affd, 185 N. Y. 577, 32. Siedenbach v. Riley, 111 N. Y. mem. 560. 64 Chattel Moetgages. posseasion in lieu of a refiling of the mortgage is similar in many respects. This question is treated in another place in this work." b. Constructive Possession. — The possession required in the mortgagee is an actual, physical possession; constructive or legai possession is insufficient/* The change of possession must be open, visible and free from concealment/' But it is not necessary in all cases that the property be removed from the premises where it was previously located/" Where no apparent change is made in the custody and control of the property, an agreement between the parties that the mort- gagor is to sell the goods as agent for the mortgagee is not suffi- cient/^ A change of possession from that of mortgagor, as such, to possession as an agent of the mortgagee is not an actual change 33. See infra, the subdiTision' Change of Possession in Lieu of Refil- ing, p. 103. 34. Steele v. Benham, 84 N. Y. 634; Siedenbach v. Kiley, 111 N. Y. 560; Tedesco v. Oppenheimer, 15 Misc. 522, 37 N. Y. Supp. 1073; Camp v. Camp, 2 Hill 628. See also Wild v. Porter, 59 App. Div. 350, 69 N. Y. Supp. 839, aff'd, 173 N. Y. 614, mem. " Actual change of possession im- ports at least something more than » mere legal or fictitious change to be worked by the operation of the mort- gage itself. Upon any other con- struction the statute means nothing. Nor can parties agree that the mort- gagor shall continue in actual pos- session and call this the possession of the mortgagee." Camp v. Camp, 2 Hill 628. 35. Tedisco V. Oppenheimer, 15 Misc. 522, 37 N. Y. Supp. 1073; Steele v. Benham, 84 N. Y. 634 ; Top- ping V. Lynch, 2 Rob. 484. 36. Lee v. Huntoon, Hoff. Ch. 447, 456, wherein the court said: "An immediate delivery and an actual and continued change of possession are consistent with the retention of the property on the same premises. Removal is an evidence, and a strong one, of that change — but not the indispensable evidence. The exercise of ownership and control by the as- signee, and above all, the absence of any such control by the assignor, appears to me the true test by which to decide the validity of the transfer. Removal may be insufficient, because the control of the assignor may be afterwards resumed; and certainly the change of possession may be as entire and continued, and the exclu- sion of the assignor as absolute and unequivocal, without a removal as with it. All that the statute pre- scribes is, that the change should be notorious, and the possession and con- trol of the assignee indisputable and unshared." 37. Tedesco v. Oppenheimer, 15 Misc. 522, 37 N. Y. Supp. 1073, wherein the court said: "The change of possession intended is physical, and not merely legal or constructive. The mischief which the law was in- tended to prevent was the deceptive and resultant injury which would in- evitably arise from the indicia of ownership being vested in one who had not title, or only a defeasible one, and who would thus be in a position to secure credit to which he was not Filing. 65 v.'ithin the meaning of the statute.^' A mortgagee, by setting the mortgaged property apart from other property of the mortgagor in the store of the latter and marking the articles with his name by the use of tags, does not secure such an immediate delivery and change of possession of the property as the statute requires.'* Where a lessor of a farm, the crops to be divided between th« lessor and lessee, reserved a lien on the growing crops, it was held that the fact that the lessor resided upon the farm did not give her actual possession of the tenant's share of the crops and that it was necessary to file the lease.'"' Where, at the time a mortgage upon certain furniture was executed, the mortgagee was boarding with the mortgagor, and the mortgagor declared in another instru- ment that she turned over and delivered the mortgaged chattels to the mortgagee, but the mortgagor was allowed to continue to use them in the conduct of the boarding house, it was held that the change of possession was insufficient to excuse the omission to file the mortgage.*^ Where the property was in the possession of a tenant of the successor to the title of the mortgagor and the mort- gagee made a demand upon such tenant for the possession of the property and left with him a written notice that he had taken actual possession thereof, the property continuing, as before, in the actual possession of the tenant, it was held that the change of possession was insufficient to relieve the mortgagee.*^ c. Symbolic Possession. — The delivery of a warehouse receipt or bill of lading, as security for a debt, is a symbolic delivery of the property represented thereby. The transaction is sometimes entitled, and to perpetuate frauds disclose itself to others than the im- upon the public, deluded by the evi- mediate parties to thfe transfer, how- dence of title which the possession ever honest they may have been in and visible dominion over property their intention, the situation exists bespeaks. It is, therefore, a neeea- which the statute was designed to sary feature of the possession to prevent.'' which the statute refers that it 38. Otis v. Sill, 8 Barb. 102; Camp should be open, visible and free from v. Camp, 2 Hill 628. concealment. It then becomes notice 39. Button v. Eathbone, Sard & Co., in its highest form of the claim of the 126 N. Y. 187. possessor, and the constructive notice 40. Thomas v. Bacon, 34 Hun 88. which arises from the filing of the 41. Watson v. Dealy, 28 Misc. 544, mortgage becomes unnecessary. But 59 N. Y. Supp. 623. where the change of possession is not 42. Beskin V. Feigenspan, 32 App. of that character, so that it fails to Div. 29, 52 N. Y. Supp. 750. 5 66 Chattel Mortgages. deemed a chattel mortgage of the property, and the delivery of the instrument considered a delivery of the property so that the transaction may he sustained without the filing required by the chattel mortgage statutes. ^^ d. Delivery of Part of Mortgaged Chattels. ■ — A change of possession as to part of the mortgaged chattels is not sufficient to excuse a failure to file the mortgage. It may be avoided even as to the portion the possession of vfhich is changed.** Sec. 4. Time of Filing. a. In General. — The statute does not expressly limit the time within which a chattel mortgage shall he filed.*" The courts, therefore, hold that the mortgagee is entitled, where rights of third persons do not intervene between the execution and the filing of the instrument, to a reasonable time after the execution and delivery of the mortgage, in which to file the same in the proper office.*' What is a reasonable time depends upon the particular 43. Bank of Rochester v. Jones, 4 N. Y. 497 ; First Nat. Bank v. Kelly, 67 N. Y. 34. 44. Benedict v. Smith, 10 Paige 126, wherein the court said: "It is not material in this case that a, part of the mortgaged property was deliv- ered, inasmuch as a part thereof re- mained in the possession of the mort- gagor. The statute does not avoid the mortgage merely as to so much of the property as remains in the possession of the mortgagor. But the mortgage itself is declared void, if not filed as directed by the act, where it is not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged. And a change of possession as to part of the property included in the mort- gage is not a change of possession of tVie things mortgaged, within the in- tent and meaning of the statute. The mortgage must therefore be filed, un- less there is an immediate delivery of the whole property embraced therein and a continued change of possession, or such mortgage is made absolutely and wholly void, as to creditors, by the express terms of the statute." 45. Smith v. Acker, 23 Wend. 653; Karst V. Gane, 136 N. Y. 316. 46. Tooker v. Siegel-Cooper Co., 194 N. Y. 442: Vreeland v. Pratt, 17 N. Y. Supp. 307, 42 St. Rep. 582; Hicks V. Williams, 17 Barb. 523; Smith V. Acker, 23 Wend. 653; In re Shiebler, 165 Fed. 363. The statute contains no direction as to the time within which a chattel mortgage shall be filed; and in the absence of any such provisions courts have no power to supply the de- ficiency, or to declare a mortgage void because of its not having been filed at the time it was executed. Hicks V. Williams, 17 Barb. 523. As Soon as Practicable. — The filing must be as soon as practicable after the mortgage is delivered. The mort- gagee cannot keep a security of this class a secret and proceed to enforce Filing. 6'i circumstances of each case/^ Delays of six months,*' five months,** nearly three months,"" two and one-half months,"^ two months,"" fifty-four days,°* forty-seven days,"* six weeks,"" four weeks,"* it the moment the other creditors of the mortgagor are ready to seize the property by legal process, and thwart the purpose of the vigilant creditor, by filing the mortgage and taking into his possession the prop- erty. Parshall v. Eggart, 52 Barb. 367, rev'd on other grounds, 54 X. Y. 18. " While the purpose of the act does not in terms require an immediate filing of a mortgage in order to make it valid against creditors or subse- quent mortgagees or purchasers, the purpose of the act can only be satis- fied by prompt and diligent action on the part of the mortgagee In filing his mortgage. The filing stands as a substitute for immediate delivery and an actual and continued possession of the property, and avoids the con- clusive presumption of fraud which ■would otherwise attach to the instru- ment under the Act of 1833 [now con- solidated in Article X of the Lien law] in the absence of delivery and a change of possession of the mort- gaged property. Some time must necessarily elapse between the execu- tion and filing of the mortgage. Where it appears that due diligence ■was exercised in filing the mortgage, and there was no unnecessary delay and no actual intervening lien has been acquired, there would seem to be no ground upon which subsequent lien holders could question the valid- ity of the mortgage under the act of 1833. The filing under these circum- stances would be immediate and make the mortgage valid as against liens subsequently acquired." Karst V. Gane, 136 N. Y. 316. 47. Vreeland V. Pratt, 17 N. Y. Supp. 307, 42 St. Rep. 582. 48. A chattel mortgage given No- vember 20, 1894, and not filed until June 14th is void as to creditors at- taching the property June 13th and re- ceivers thereof appointed on the same day, although their liens and debts arose subsequently to the execution of the mortgage. Ledoux v. Bank of America, 24 App. Div. 123, 48 N. Y. Supp. 771. 49. Davidson v. Osborne, 75 Misc. 391, 135 N. Y. Supp. 675. 50. In re Schmidt, 181 Fed. 73. 51. Merry v. Wilcox, 93 Hun 210, 36 N. Y. Supp. 1050. 52. A failure to file the mortgage for two months after its execution renders it void as against simple eon- tract creditors of the mortgagor, whose claims accrued prior to the execution of the mortgage ; the filing of the mort- gage before the creditor obtains judg- ment upon his claim does not render the mortgage valid from the date of filing. Grouse v. Schoolcraft, 51 App. Div. 160, 64 N. Y. Supp. 640. 53. Eudd V. Eobinson, 54 Hun 339, 7 N. Y. Supp. 535, rev'd on other grounds, 126 N. Y. 113. 54. Field v. Ingreham, 15 Misc. 539, 37 N. Y. Supp. 1135, holding that the fact that the mortgage includes prop- erty exempt from execution under section 1391 of the Code does not change the rule where the mortgagor has not claimed the exemption. 55. Karst v. Gane, 136 N. Y. 316, holding that the filing of the mort- gage before creditor's judgment was obtained does not restore the validity of the mortgage as against creditors whose debts were in existence during the default in filing the mortgage. 56. Tooker v. Siegel-Cooper Co., 194 N. Y. 442. 68 Chattel Moetgages. have rendered the filing ineffectual. The filing of a first chattel mortgage at two- thirty in the afternoon (ten days after it was executed) of the same day a second chattel mortgage was executed, cannot be regarded as notice to the second mortgagee of the first mortgage; the second mortgage is a prior lien.^^ Where a mortgage was executed on the 31st of August or the 1st of September and it was not filed until the fifth, the question whether the mortgage was filed within a reasonable time was left with the jury. The jury found it was not. It was said at General Term : " As a question of fact I doubt very much whether the jury reached a correct conclusion in that respect. The mortgagee lived some three miles from the town clerk's office, and it does not seem to me that the delay was unreasonable." The decision in the case was, however, placed upon other grounds. °' It has been held that a delay of two days does not render the mortgage void where rights of third persons do not intervene between the execution and filing of the instrument. °° Where the mortgage upon execution is delivered, not to the mortgagee, but to a third party, upon no condition except that it shall not be delivered at all in the event of the payment of the debt before a specified day, the reasonable time commences to run from such deliv.ery and not from the time of the delivery to the actual mortgagee. °° A chattel mortgage is not effective, as against creditors, or sub- sequent purchasers or mortgagees in good faith until it is filed. If a creditor levies upon the mortgaged property or such property is sold or mortgaged to a purchaser or mortgagee in good faith during the interval between the execution and the filing of the mortgage, the mortgage is ineffectual. The diligence of the mort- gagee will not avail him.°^ Thus, where a mortgage upon a canal boat in this State was executed in Pennsylvania, and an agent of Where the mortgagee fails to file 58. Clark v. MeDuffie, 21 N. Y. the mortgage for four weeks after Supp. 174, 49 St. Eep. 535. execution it is void as to creditors 59. Smith v. Acker, 23 Wend. 653. ■whose debts accrued before the exe- 60. Tooker v. Siegel-Cooper Co., cution thereof. Vreeland v. Pratt, 42 194 N. Y. ,442. St. Rep. 582, 63 Hun 626, 17 N. Y. 61. Hathaway v. Howell, 54 N. Y. Supp. 307. 97; Keller v. Paine, 107 N. Y, 83; 57. Huber v. Ehlers, 76 App. Div. Hicks v. Williams, 17 Barb. 523; 602, 79 N. Y. Supp. 150. Smith v. Acker, 23 Wend. 653. Filing. 69 the mortgagee, witli the utmost diligence, took the earliest train to the place where the mortgage should be filed and reached there on the following day but one hour after a levy on the boat had been made by a creditor, it was held that the mortgage, not having been filed at the time the levy was made, was ineffectual as against the creditor."^ And where a chattel mortgage was executed at 10 p. M. on Saturday night and was immediately delivered to the filing officer, who though not at his office marked the same as filed at that hour, it was held that where the mortgage was not taken to the clerk's office until 9 a. m., Monday, it would be void as against a levy properly made at 8 p. m. on that day."' b. Priority of Mortgages Filed at Same Time. — Where two mortgages are executed at the same time on the same property to different persons and both are filed at the same time, an agreement that one is to have priority over the other will be sustained. This priority cannot be affected or changed by the neglect of the owner of the mortgage accorded priority to refile it, nor by the diligence of the other mortgagee in refiling his within due time.'* Sec. 5. Place of Filing. a. Statute. — " An instrument, or a true copy thereof, if in- tended to operate as a mortgage of a canal boat, steam tug, scow or other craft, or of the appurtenances thereto, navigating the canals of this State, must be filed in the office of the superintendent of public works, and need not be filed elsewhere. Every other chattel mortgage, or an instrument intended to operate as such, or a true copy thereof, must be filed in the town or city where the mortgagor, if a resident of the State, resides at the time of the execution thereof, and if not a resident, in the city or town where the property mortgaged is at the time of the execution of the mort- gage. If there is more than one mortgagor, the mortgage, or a certified copy thereof, must be filed in each city or town within the State where each mortgagor resides at the time of the execution thereof. In the city of New York, such instrument must be filed as follows, namely : In the borough of Brooklyn in said city, such 62. Keller v. Paine, 107 N. Y. 83. superior to the claim of the 63. Hathaway v. Howell, 54 N. Y. creditor. 97, but holding that, where the levy 64. Wray V. Federke, 11 J. & & was not good, the mortgage was 335. 70 Chattel Mortgages. instrument shall be filed in the oflBce of the register of the county of Kings; in the borough of Queens in said city, in the office of the clerk of Queens county; in the borough of Kiohmond in said city, in the office of the derk of the county of Richmond ; in the borough of Manhattan in said city, in the office of the register of the county of New York, and in the borough of the Bronx in said city, in the office of the register of the county of Bronx. In every other city or town of the State, in the office of the city or town clerk, unless there is a county clerk's office in such city or town, in which case it must be filed therein. If the chattels mortgaged are in the city of New York at the time of the execution of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the property is situated. All liens and mortgages, including books and papers pertaining thereto, now on file in the comptroller's office, shall be transferred to the office of the superintendent of public works, who shall preserve the same in his department, and who shall be vested with full power and authority to do and per- form any and all things relating thereto in like manner and with the same force and effect as heretofore done and performed by the comptroller."^ b. Construction of Statute. — If the mortgagor is a resident of the State, the mortgage must be filed in the town or city of his residence."" A mortgage of both realty and personalty must be filed in the town clerk's office as to the personalty; a filing in the 65. Lien Law, § 233. ers v. Freeman, 2 Lans. 127; Gould The last sentence of this section v. Browne, 4 Leg. Obs. 423. See also was addded in 1910 when the Legis- Jeneks v. Smith, 1 N. Y. 90. lature, by other amendments to the Residence in Kings; Place of Busi- Lien Law, changed the place of filing ness in New York County. — Where for mortgages on canal boats from a mortgagor has his residence in the the office of the comptroller to county of Kings, but has a place of that of the superintendent of public business in the county of New York, works. wherein goods were sold to him", the 66. Stewart v. Piatt, 101 U. S. 731; county of Kings is the proper county People ex rel. Stevens v. Hoyt, 66 in which to file a purchase-money N. Y. 606; Martin v. Rothschild, 42 mortgage, and it is void as to a pur- Him 410; Baumann v. Libetta, 3 chaser in good faith if filed only in Misc. 518, 23 N. Y. Supp. 1 ; Chandler New York county. Baumann v. V. Bunn, Hill & D. Supp. 167; Pow- Libetta, 3 Misc. 518, 23 N. Y. Supp. 1. Filing. 11 county clerk's office is insufficient."' Filing in the clerk's office of the town wherein the mortgagor resided at the time of the execution of the mortgage is sufficient, though the mortgagor does not reside there at the time of the filing."' Thus, where a person residing in one town bought a farm and stock in another town, giving a mortgage on the stock, and a few days afterward moved his residence to the farm, it was held that the mortgage should have been filed in the town of his former residence and, as it was only filed in the town where the farm was situated, it was void as against a bona fide purchaser."' c. Effect of Erroneous Statement of Residence. — The fact that the mortgagor is described in the instrument as residing in a particular town or county is of no importance. A creditor or subsequent purchaser or mortgagee can show that such is not the true residence of the mortgagor and thus defeat the mortgage lien. A person or creditor dealing with the mortgaged property is bound to look for mortgages only in the town or city where the mortgagor actually resides.^" The mortgagee or his assignee is not estopped by an erroneous recital of the mortgagor's residence ; he may show the correct residence of the mortgagor and that the mortgage is properly filed at such residence.'^ The statute seems to provide an exception to the requirement that the mortgage be filed in the town where the mortgagor resides 67. See supra, the subdivision Ne- And he has no right to substitute cessity of Piling — Mortgage of Real for it anything else, though he may amd Personal Property, p. 62. think it would give much better in- 68. Hicks V. Williams, 17 Barb. formation of its existence than if he 523. literally followed the requirements of 69. Powers v. Freeman, 2 Lans. the statute. Persons who subse- 127, wherein the court said : " It is quently deal with the mortgagor in not enough to say, that the filing in regard to the mortgaged property, Wilna was better calculated to give are bound to take notice of the re- notice of the mortgage, than the fil- quirements of the statute, and are ing in Antwerp would have been. The bound to look for mortgages where answer to that is, that the language the statute declares they shall be of the statute is clear and explicit, in filed." requiring it to be filed in the town 70. Stewart v. Piatt, 101 U. S. 731 ; where the mortgagor resides at the Baumann v. Libetta, 3 Misc. 518, 23 time of its execution, and its re- N. Y. Supp. 1; Chandler v. Bunn, quirements must be observed by the Hill & D. Supp. 167. mortgagee, if he would have his mort- 71. Chandler v. Bunn, Hill & D. gage valid against such purchasers. Supp. 167. 72 Chattel Mobtgages. at the time of the execution of the mortgage, viz : " If the chattels mortgaged are in the city of New York at the time of the execution of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the prop- erty is situated." '^ d. Partnership Mortgage. ■ — Where the mortgaged property is owned by two or more persons, as in the case of a mortgage given by a partnership, the mortgage or a copy thereof must be filed in the town or city where each resides/' Filing in the town or city where the place of business of the firm is located is insufficient/* e. Mortgage by Joint Stock Association. — It would be ex- tremely burdensome to file a chattel mortgage given by a joint (Stock association in every town or city wherein a stockholder of the association resided. In such a case, the statute is complied with when the mortgage is filed where the principal office of the company is located, or its business principally conducted.'" f. Mortgage of Vessel. — The filing of mortgages on vessels of the United States is governed by federal statute. Such mortgages are treated in another chapter of this work.''* g. Mortgage of Canal Boat. — Since the 1910 amendment to the statute, mortgages on canal boats must be filed in the office of the superintendent of public works. If not so filed, though filed in the clerk's office of the town wherein the mortgagor resides, they are void as to creditors, etc.'' 78. The amendment of the statute erty is situated and one of the part- creating this exception apparently ners resides, but is not filed in the overrules some of the above decisions. city and county where the other part- But the principle involved and its ner resides, the mortgage is thereby application to counties other than rendered void as against the creditors New York has not been disturbed. of the mortgagors, and subsequent 73. Stewart v. Piatt, 101 U. S. 731 ; purchasers and mortgagees in good Eussell V. St. Mart, 180 N. Y. 355; faith. Russell v. St. Mart, 180 N. Y. Bueb V. Geraty, 28 Misc. 134, 59 N. Y. 355. Supp. 249. 74. Stewart v. Piatt, 101 U. S. 731. Where a chattel mortgage to secure 75. Nelson v. Neil, 15 Hun 383. part of the purchase price of mort- 76. See infra, the chapter Mort- gaged property is given by the mem- gages on Vessels, p. 189. bers of a firm, who reside in different 77. Witherbee v. Taft, 51 App. Div. places and the mortgage is filed in 87. 64 N. Y. Supp. 347. See also the town and county where the prop- Sweet v. Lawrence, 35 Barb. 337. Filing. 73 h. Mortgage of Liquor Tax Certificate. — The Liquor Tax Law specially provides for the filing of an instrument transferring a liquor tax certificate as security. The provision is as follows: " Each county treasurer of a county or each special deputy com- missioner of excise, if there be one, shall receive and file in his office every instrument in writing, tendered to him, by which an unexpired liquor tax' certificate, issued by him or by his predecessor in office, or any other liquor tax certificate hereafter issued by him or his successor in office, is assigned or transferred by the holder thereof to a person as collateral security for moneys loaned or any other obligation incurred; and such county treasurer or special deputy, as the case may be, shall immediately enter in a record book to be kept by him for that purpose the name of the certificate holder, the location of the premises for which such certificate was issued, or to which such certificate may have been transferred, imder what subdivision of section eight the certificate was issued, the date when issued, the name and the address of the assignee or transferee, the date of such assignment or transfer, the date such assignment or transfer was received and filed and the date of the cancellation and discharge of the same; such county treasurer or special deputy, as the case may be, shall immediately indorse upon said assignment or transfer the date of the receipt of same, the name of the holder of the certificate, the name of the assignee or transferee, the number of the certificate, the location of the prem- ises for which the certificate was issued, or to which such cer- tificate may have been transferred, the date of the issuance of the same, under what subdivision of section eight the certificate was issued and the date of the assignment or transfer; said indorse- ment shall be signed by said county treasurer, or special deputy, in whose office the same is filed and such indorsement shall be received in evidence in all courts of this State and shall be com- petent and sufficient prima facie evidence of all the facts stated therein." " Sec. 6. Filing of Portion of Contract. Where a chattel mortgage is in the form of a bill of sale with a separate defeasance, the filing of the bill of sale is sufficient to 78. Liquor Tax Law, § 12-a, added by Laws of 1912, chap. 263. 14: Chattel Moetgages. satisfy the statute.'' If the defeasance were oral, as is many times the ease, no other filing would be possible. Where, by the terms of a chattel mortgage, the debt was to be paid at the expiration of a certain number of years, " except in case default should be made in the performance of the conditions of a certain agreement this day executed," such agreement provid- ing that the debt was to be paid in monthly installments, it was held that the mortgage was properly filed though the agreement referred to was not filed.*" Sec. 7. The Acts of Filing and Entry. a. Statute. — Section 233 of the Lien Law provides for the filing and entry of chattel mortgages as follows : " Such officers shall file every such instrument presented to them for that purpose, and indorse thereon its number and time of its receipt. They shall enter in a book, provided for that purpose, in separate columns, the names of all the parties to each mortgage so filed, arranged in alphabetical order, under the head of ' mortgagors ' and ' mortgagees,' the number of such mortgage or copy and the date of the filing thereof ; and, if the mortgage be upon a craft navigating ' the canals, and filed in the office of the superintendent of public works, the name of the craft shall also be inserted. In the city of New York such officers shall in addition to the entry aforesaid enter in another book provided for that purpose a statement of the premises in which the chattels mortgaged are contained, arranged in alphabetical order, under the name of the street or avenue where the premises are situated and giving the number of such mortgage or copy and the date of the filing thereof. In case no street or avenue is mentioned in the description, in the mortgage or copy, of the premises in which the chattels are contained, then a state- ment of such premises shall be entered under the title ' miscel- laneous.' Except in the city of New York such officers at the time of filing of such instrument shall, upon request, issue to the person filing the same a receipt in writing, which shall contain the names of the parties to the mortgage, its date, amount and the date and lime of filing thereof." 79. Preston V. South wick, 115 N.Y. 80. Shuler v. Boutwell, 18 Hun 139. 171. Filing. 75 b. Absence of Officer. — The statute requires the filing in the office of certain officials. If filed in the office, it is not necessary that the officer be personally present at the time.*^ Thus, the filing may be made by a clerk in the store of the town clerk, having charge of the office in the absence of the officer.*^ But a proper filing requires the act of the clerk or some person in charge of the office. An unsuccessful attempt to enter the office or to leave the mortgage at the office, when no one is present, is not a proper filing.*' Thus, where a mortgagee went to the town clerk's office to file a chattel mortgage, but found it closed, and, when he re- turned several hours afterward, the office was open but no one was present, whereupon he placed the mortgage on a desk in the office with the filing fee and wrote on the instrument a direction to file the same, it was held that the mortgage was not properly filed until the following day when the clerk discovered it.'* Where a mortgage is delivered to the clerk after office hours and at a time when he is absent from his office, it is not deemed filed until it is taken to the office. '° c. Vacancy in Office. — Although, by reason of a vacancy in the office, there may be no town clerk, there is a town clerk's office. Thus, where there was a vacancy in such office, but a person, having the keys to the building containing the town clerk's office, placed a mortgage among the other chattel mortgages and indorsed it " Filed Oct. 20th, 1845," it was held that the filing was sufficient." d. Omission of Officer. — The filing consists in presenting the mortgage at the office and leaving it in the proper place with the 81. Dodge V. Potter, 18 Barb. 193. an unsuccessful attempt to enter the 82. Dodge v. Potter, 18 Barb. 193. office, or the leaving of a paper 83. Grouse v. Johnson, 65 .Hun 337, therein, constitutes a, filing, is not, 20 N. Y. Supp. 177. we think, justified by the statute. A 84. Grouse v. Johnson, 65 Hun 337, chattel mortgage is filed within the 20 N. Y. Supp. 177, wherein the meaning of the statute when it is court said : " The statute requires delivered to, received and kept by clerks to file all chattel mortgages the proper officer, or some one in that are presented to them for that charge of the office, for the purpose purpose, and enter thereon the time of the notice the statute intended of receiving the same, and to deposit should be given." them in their office for inspection. 85. Hathaway v. Howell, 54 N. Y. To constitute a proper filing requires 97. the act of the clerk or some person 8G. Bishop v. Cook, 13 Barb. 326. in charge of the oflice. To hold that 1Q Chattel Moetgages. papers in the office. The numbering, indorsement and indexing are not substantial elements of the filing. These latter acts are to be done by the officer, and their improper performance does not affect the rights of the mortgagee.*^ If a third party is misled by the failure of the officer to properly perform his duty, he must seek redress against the officer. °' Sec. 8. Payment of Fees. " The several clerks and registers are entitled to receive for services hereunder, the follov^ing fees : For filing each instrument, or copy, six cents; for issuing a receipt for the same, six cents; for entering the same as aforesaid, six cents; for searching for each paper, six cents ; and the like fees for certified copies of such instruments or copies as are allowed by law to clerks of counties for copies and certificates of records kept by them. The superin- tendent of public works is entitled to receive the following fees for services performed under this article, for the use of the State: For filing each instrument or copy and entering the same, twenty- five cents ; for searching for each paper, twenty-five cents ; and the like fees for certified copies of such instruments or copies as are allowed by law to be charged by the superintendent of public works for copies and certificates of records kept in his office, l^o officer is required to file or enter any such paper, or furnish a copy thereof, or issue a receipt therefor, until his lawful fees are paid." ^' The payment or tender of the fees specified in the statute is necessary to entitle a mortgagee to demand the filing and registry of his mortgage.^" Sec. 9. Removal of Mortgage. There is no duty expressly imposed upon the clerk by the chattel mortgage statutes to keep the mortgage on file. However, such a duty is reasonably implied from the nature of his office. Where a mortgage is temporarily removed from the office under a subpoena 87. Dikeman v. Puekhafer, 1 Abb. 88. Dikeman v. Puekhafer, 1 Abb. Pr., N. S., 32, 1 Daly 489; Bishop v. Ft., N. S., 32, 1 Daly 489. Cook, 13 Barb. 326; Dodge v. Potter, 89. Lien Law, § 234. 18 Barb. 193. See also Manhattan 90. People ex rel. Stevens v. Hoyt, Co. V. Laimbeer, 108 N. Y. 590, 66 N. Y. 606, rev'g 7 Hun 39. approving the above cases. Filing. 77 duces tecum at the instance of a judgment creditor, such creditor will not acquire any rights thereby superior to the mortgage by causing an execution to be levied upon the mortgaged property while the mortgage is so absent from the office."^ Sec. 10. Effect of Failure to File. a. As to Third Parties. — By the statute, a chattel mortgage not filed as prescribed therein is void unless a change of posses- sion of the property is made, as to creditors and subsequent pur- chasers or mortgagees in good faith. The instrument is void be- cause the statute says so, not because it is tainted by any inherent vice.°^ It is not void as malum in se, but as malum prohibitum."^ It may be affected as to a portion of property covered thereby and enforceable as to the balance.®* b. As Between the Parties. — As between the parties thereto a mortgage is valid and enforceable without filing or change of possession."" Sec. 11. Who May Attack Mortgage for Failure to File. a. In General. — A mortgage not properly filed is void only as to the classes of persons mentioned in the statute, viz: creditors or subsequent purchasers or mortgagees in good faith." Thus, the mortgagee is entitled to the mortgaged property as against a person wrongfully taking the same, though his mortgage is not filed.''' And an unfiled mortgage upon chattels brought by the mortgagor 91. Rogers v. Dwlght, 71 Hum 547, Supp. 351; Hof v. Mager, 168 App. 25 N. Y. Supp. 39. Div. 318, 154 N. Y. Supp. 60; Balz v. 92. Chemung Canal Bank v. Payne, Shaw, lb Misc. 181, 34 N. Y. Supp. 5; 164 N. Y. 252; Niagara County Bank Zimmer v. Wheeler, 2 St. Eep. 325; V. Lord, 33 Hun 557. Wescott v. Gunn, 4 Duer 107. Pan- 93. Stephens v. Meriden Britannia coast v. Amearican Heating & Power Co., 160 N. Y. 178. Co., 66 How. Pr. 49 ; Bryant v. Wood- 94. Chemung Canal Ba^nk v. Pa,yne, ruff, 5 Leg. Obs. 139; Manufacturer's 164 N. Y. 252; Hardin v. Dolge, 46 Bank v. Eober, 19 Week. Dig. 476. App. Div. 416, 61 N. Y. Supp. 753. gg. Sheldon, V. Wicfcham, 161 N. Y. 95. Stewart «J. Piatt, 101 U. S. 731; -„„ •□■ , t » it Ward V. Ward, 145 Fed. 1023, 74 ^'"'5 Hayman V. Jones, 7 Hum 238; C. C. A. 146; Stephens v. Meriden I-am v. Sayer, 50 App. Div. 554, 64 Britannia Co., 160 N. Y. 178; Ganidy N. Y. Supp. 248; Hof V. Mager, 168 V. Collins, 214 N. Y. 293; E. De App. Div. 318, 154 N. Y. Supp. 60; Braekeleer & Co. v. Sehwabeland, 86 ri..i»c^ij, ., t>„™.,«j .lo aw -w n Hun 143, 33 N. Y. Supp. 212, dfTd, ^"^^^^^ "' Bogardus, 18 Abb. N. C. 155 N. Y. 644, mem.; Skilton v. Cod- 334. ington, 86 App. Div. 166, 83 N. Y. 97. Mosea V. Walker, 3 Hilt. 536. 78 Chattel Moetgages. into a firm of ■which he becomes a member, as his proporjiion of the capital, is not void as against the other partners."' b. Creditor in General. — A chattel mortgage not properly filed is void as to creditors, including simple contract creditqi-s, whose debts were in existence at any time during the default in filing. Whether the debt accrued before or after the execution of the mort- gage is immaterial."" But though the mortgage is void as against a simple contract creditor, he is not in a position to avail himself 98. Rust r. Hauselt, 14 J. & S. 22. 99. Thompson v. Van Vechten, 27 N. y. 568; Parshall v. Eggert, 54 N. Y. 18; Tremaine v. Mortimer, 128 N. Y. 1; Karst v. Gane, 136 N. Y. 316; Stephens v. Perrine, 143 N. Y. 476; Russell V. St. Mart, 180 N. Y. 355; Fraser v. Gilbert, 11 Hun 634; Reynolds v. Ellis, 34 Hun 47, aff'4 103 N. Y. 115; Campbell Printing Press, etc., Co. v. Damon, 48 Hun 509, 1 N. Y. Supp. 185 ; Sheldon v. Wickham, 27 App. Div. 628, 50 N. Y. Supp. 314; Crouse v. Schoolcraft, 51 App. Div. 160, 64 N. Y. Supp. 640; Bullard v. Kenyon, 24 N. Y. Supp. 374, 53 St. Rep. 731; Smith v. Clar- endon, 6 N. Y. Supp. 809; Lane v. Lutz, 1 Keyes 203, 3 Abb. Dec. 19; Clark V. Gilbert, 14 Week. Dig. 241. Debt Accruing before Execution of Mortgage. — In Karst v. Gane, 136 N. Y. 321, the court holding that creditors whose debts antedate the execution of the mortgage may attack the same for failure to file, said: " It is undoubtedly true that one and perhaps the most important purpose of the act, so far as it applies to cred- itors, was to protect persons giving credit to the mortgagor in ignorance of the existence of a mortgage upon his property. But the legislative pol- icy was broader than this single pur- pose. It is impossible to say that only creditors who became such dur- ing the existence of a mortgage may be injured by keeping the mortgage a secret. It certainly is not improbable that in many cases antecedent credit- ors may be lulled into security and forbear the collection of their debts at maturity, by the apparent unin- cumbered possession and ownership by the debtor of property covered by an undisclosed mortgage." An indorse!, whose liability had not become fixed at the time the mortgage was filed, by the maturity and dishonor of the note to which he was a party, is not a creditor of the mortgagor within the meaning of the statute. Karst v. Gane, 61 Hun 533, 16 N. Y. Supp. 385, aff'd, 136 'S. Y. 316. The filing of the mortgage does not restore the validity thereof as against creditors whose debts were in exist- ence during the default in filing the mortgage, although judgments or ex- ecutions were not obtained until after the mortgage was in fact filed. Karst V. Gane, 136 N. Y. 316; Crouse v. Schoolcraft, 51 App. Div. 160, 64 N. Y. Supp. 640. A simple contract creditor is as much within the protection of the statute as a creditor whose claim has been merged into judgment, but he runs the risk of having his remedy defeated by a transfer of the property from the mortgagor to the mortgagee in payment of the mortgage before he has acquired a lien thereon. Karst V. Gane, 136 N. Y. 316. FlLIBTG. 79 of the invalidity until he has procured, or is in a position to pro- cure, a specific lien and claim against the property involved.^"" This means, ordinarily, that he must procure a judgment and cause execution to be issued against the property of the mort- gagor.^"' The granting of an attachment, however, is an adjudi- Creditor's Right Assigned with Debt. — The preference of a creditor over an unfiled mortgage attaches to the debt and accompanies it when transferred in the course of the nego- tiation of commercial paper. Thomp- son V. Van Vechten, 27 N. Y. 568. Mortgage on Exempt Property. — A creditor may attack an unfiled mortgage on property exempt from execution under section 1391 of the Code of Civil Procedure, where the mortgagor has not claimed the exemp- tion. Field V, Ingraham, 15 Misc. 529, 37 N. Y. Supp. 1135. Creditors Not Prejudiced. — The word " creditors " as used in the statute includes all creditors. The term is not limited to creditors who are prejudiced by the failure to file the mortgage. In re Schmidt, 181 Fed. 73. 100. Blennerhasset v. Sherman, 105 U. S. 100; In re Gerstman, 157 Fed. 549; Thompson V. Van Vechten, 27 "n. Y. 568; Parshall v. Eggert, 54 N. Y. 18; Button v. Rathbone, Sard & Co., 126 N. Y. 187; Kitchen v. Lowery, 127 N. Y. 53; Stephens «. Meriden Britannia Co., 160 N. Y. 178; Skilton v. Codington, 185 N. Y. 80 ; Stewart v. Beal, 7 Hun 405, aff'd, 68 N. Y. 629, mem.; Campbell Print- ing Press, etc., Co. v. Damon, 48 Hun 509, 1 N. Y. Supp. 185; Castleman v. Pryor, 55 App. Div. 515, 67 N. Y. Supp. 229, aff'd, 168 N. Y. 354; Tooker v. Siegel-Cooper Co., 55 Misc. 63, 106 N. Y. Supp. 277, aff'd, 126 A-rn. Div. 913, mem.; Matter of 'run- son, 70 Misc. 461, 128 N. Y. Supp. 1106; Grasmuck v. Baur, 12 Daly 180; Ebling v. Husson, 22 J. & S. 377, 7 St. Rep. 29. An unfiled chattel mortgage is not absolutely void, as it is good as be- tween the parties and as against cred- itors at large. It is only void as to judgment creditors or creditors armed with some legal process au- thorizing the seizure of the property. Stephens v. Meriden Britannia Co., 160 N. Y. 178. 101. Thompson v. Van Vechten, 27 N. Y. 568; Jones v. Graham, 77 N. Y. 628; Sullivan v. Miller, 106 N. Y. 635; Button v. Rathbone, Sard & Co., 126 N. Y. 187; Kitchen v. Lowery, 127 N. Y. 53; Kennedy v. Nat. Union Bank of Watertown, 23 Hun 494; Witherbee v. Taft, 51 App. Div. 87, 64 N. Y. Supp, 347; Cullen V. Ryder, 44 Misc. 485, 89 N. Y. Supp. 465, aff'd, 111 App. Div. 911; Smith V. Clarendon, 6 N. Y. Supp. 809; Briggs V. Austin, 8 N. Y. Supp. 786, 29 St. Rep. 245; Manufacturers' Nat. Bank of New York v. Rober, 19 Week. "Dig. 476. Not Necessary that Levy Be Made. — To enable a creditor to at- tack a chattel mortgage on the ground that it was not filed, it is not neces- sary that the sheriff or officer to whom the execution was delivered should make an actual levy upon the mortgaged property; delivery to the sheriff is suifieient to give the creditor standing to come into a court of equity to have the obstruction to his levy removed. Stewart v. Beale, 7 Hun 405, aff'd, 68 N. y. 629, mem.; Steffin V. Stefiin, 4 Civ. Pro. Rep. 179. 80 Chattel Moetgages. cation of indebtedness,^"^ and a creditor armed with such process may attack the mortgage.^"" The commencement of an action by a creditor in which a receiver is appointed may operate as a substitute for an execution or attachment.^"* The doctrine that a general creditor cannot attack an unfiled mortgage is simply a rule of procedure and does not affect the right, and, therefore, where the recovery of a judgment is impracticable, it is not an indispensable requisite to enforcing the rights of the creditor.^"^ Thus, where the creditor, on account of the death of the mortgagor, cannot obtain a lien or claim upon the property, relief may nevertheless be secured in equity.^"' A creditor who does not obtain a judgment, but takes a bill of sale of the goods with knowledge or notice of the existence of a mortgage thereon, takes no better title than the mortgagor had, and cannot attack the mortgage. ^"^ But where a creditor, having a second mortgage on certain personal property, takes actual pos- session thereof, in an action by the first mortgagee for the con- version thereof, the creditor may set up the defense that the first Wheie a chattel mortgage is not filed until after the delivery of an execution to the sheriff, it is void as against the latter, although actu- ally filed before a levy. Hale v. Sweet, 40 N. Y. 97. A judgment creditor, at whose re- quest the ostensible proprietor of a business has formed a dormant part- nership with a third party, which has been kept secret from other cred- itors, is not entitled, 1)y reason of having first levied upon property un- der an attachment against the mem- bers of the partnership as partners, to precedence over other judgment creditors who had previously levied upon the same property under exe- cutions against the ostensible pro- prietor of the business individually. Kings Co. Bank v. Courtney, 69 Hun 152, 23 N. Y. Supp. 542. Judgment creditor with no execu- tion is not in a position to attack a chattel mortgage on account of fail- ure to file the same. Manufacturers' Nat. Bank of New York «. Kaber, 19 Week. Dig. 476. 102. Ledoux v. East River Silk Co., 19 Misc. 440, '44 N. Y. Supp. 489. 103. Parshall v. Eggert, 54 N. Y. 18; Button v. Kathbone, Sard & Co., 126 N. Y. 187; Castleman v. Pryor, 55 App. Div. 515, 67 N. Y. Supp. 229, aif'd, 168 N. Y. 354. 104. See Kitchen v. Lowery, 137 N. Y. 53. 105. Skilton v. Codington, 185 N. Y. 80, holding that a trustee in bankruptcy may attack an unfiled mortgage through the creditors have not obtained judgments. 106. Matter of Munson, 70 Misc. 46i', 128 N. Y. Supp. 1106. ^ chattel mortgage not refiled is void as to a creditor of the mortgagor, after his death, though his claim is not reduced to judgment. Matter of MoGrovem, 118 N. Y. Supp. 378. 107. Volekers v. Sturke, 18 Misc. 457, 42 N. Y. Supp. 87; Davidson v. Osborne, 151 App. Div. 747 136 N. Y. Supp. 247. Filing. 81 mortgage was not properly filed. In such a oase, it is held that, as the instrument entitled the creditor to the immediate possession of the property, his right to take the same is as absolute as that of a creditor who has proceeded to judgment and execution.^"* And, where the creditor does not procure a judgment upon his claim, but the mortgagor delivers the mortgaged property to such creditor in payment of the debt, the mortgagee, if his mortgage is not properly filed, cannot object that the creditor has not pro- cured a judgment and the mortgagee cannot recover the property or its value from such creditor.^"® c. Creditor with Invalid Execution. — An unfiled chattel mortgage is valid as against a judgment which was entered pur- suant to a fraudulent scheme to cheat the creditors of the judg- ment debtor.^^" But, if the judgment is valid, the mortgagee cannot complain that the execution was irregularly issued. '^^^ The granting of an attachment, although ex parte, is an adjudica- tion of indebtedness which cannot be attacked by a mortgagee in foreclosing an unfiled mortgage.^^^ d. Creditor with Knowledge of Mortgage. — Knowledge of the existence of an unfiled mortgage is no answer to an attack thereon by a creditor. The statute renders the mortgage void as to a creditor with or without knowledge of the mortgage.^^* e. Purchaser or Mortgagee. — A mortgage not properly filed is void as against a subsequent purchaser or mortgagee in good faith.^" To show good faith in a subsequent mortgage of per- sonal property, so as to enable the holder thereof to avoid an unfiled mortgage, it must be proved by evidence dehors the instru- ment itself that the second mortgage was given for a valuable 108. Russell V. St. Mart, 180 N. Y. Karat v. Gane, 136 N. Y. 321 ; Dun- 355. ham v. Silberstein, 32 Misc. 642, 66 109. Davidson v. Osborne, 75 Misc. N. Y. Supp. 475; McDonald v. Safe 391, 135 N. Y. Supp. 675. Deposit & Surety Co., 32 Misc. 644, 110. E. De Braekeleer & Co. v. 66 N. Y. Supp. 475 ; Barker v. Doty, Schwabeland, 86 Hun 143, 33 N. Y. 4 Alb. L. J. 63; Tyler v. Strong, 21 Supp. 212, aff'd, 155 N. Y. 644, Barb. 198; Farmers' L. & T. Co. v. mem. Hendrickson, 25 Barb. 484; Stevens 111. Crouse v. Schoolcraft, 51 App. v. Buffalo & N. Y. City R. Co., 31 Div. 160, 64 N. Y. Supp. 640. Barb. 590. 112. Ledoux v. East River Silk Co., 114. Baskins v. Shannon, 3 N. Y. 19 Misc. 440, 44 N. Y. Supp. 489. 310 ; Thompson v. Blanchard, 4 N. Y. 113. Best V. Staple, 61 N. Y. 71; 303. 6 82 Chattel Mortgages. consideration, or to secure the payment of an honest aebt.^^'' Where a subsequent mortgage was taken in good faith, the fact that it was not properly filed does not deprive it of the protection of the statute. Its priority does not depend upon filing.^^° If the respective mortgagees of two chattel mortgages on the same property agree with the common mortgagor and with each other that the mortgage first executed shall be the first lien, such agree- ment will not be affected by the prior filing of the second mort- gage, and can be enforced by the owner of the first mortgage not only as against the mortgagee of the second mortgage, but also as against any subsequent purchaser of that mortgage.^^^ f . Purchaser or Mortgagee from Third Party. — Where a per- son in good faith buys mortgaged chattels, not from the mortgagor, but from one who is a mala fide purchaser, the last purchaser is not one who can attack the mortgage for failure to file.^^' Thus, where a wife gives a chattel mortgage, a purchaser or mort- gagee from her husband is not in a position to attack the mort- gage for failure to file.^^' But where the first purchaser is in good faith, the second succeeds to his rights and can attack the mortgage."" g. Purchaser or Mortgagee with Notice of Unfiled Mort- gage. — A subsequent purchaser or mortgagee of chattels, having actual knowledge of an existing mortgage thereon, is not " in good faith," and the mortgage is enforceable as against him.^^^ 115. Baskins v. Shannon, 3 N. Y. 120. See Dillingham v. Boli, 37 310, holding that evidence showing N. Y. 198. See also Allen V. Heine, that, about a year before the subse- 20 N. Y. Supp. 38. quent mortgage was given, the mort- 121. Benjamin v. Elmira, J. & C. gagor became indebted to the mort- E. Co., 54 N. Y. 675 ; Briggs v. Oliver, gagee, but not connecting the two 68 N. Y. 336; Gildersleeve v. Landon, transaiv. 287, 61 N. Y. Supp. 138. Feaudulent Moetgages. 121 An arrangement made by one whose property is about to be sold by virtue of a chattel mortgage, with another that the latter shall bid a certain amount for the property, and if he becomes the purchaser, shall give the mortgagor an undivided interest therein for the benefit of members of his family, on his paying an equal share of the purchase money, is neither a fraud upon creditors nor against public policy.*' The question whether a chattel mortgage was given with the intent to defraud the creditors of the mortgagor is for the jury."' b. Between Husband and Wife. — A husband honestly indebted to his wife may give her a chattel mortgage to secure the debt, although he is at the time of executing it unable to pay his debts in full; and when it is found by the jury that the mortgage was given with honest intent, and not for the purpose of hindering, delaying or defrauding creditors, it is valid."' But dealings between a husband and wife which result in the appropriation of the husband's property for the payment of a debt claimed to be due to the wife, to the exclusion of other creditors, furnish uncom- mon opportunities for the perpetration of fraud, and are carefully and rigidly scrutinized." Where a husband gave his wife a chat- tel mortgage to secure an actual indebtedness and it was found that the mortgage was not given to hinder, delay or defraud cred- itors, it was held that she could maintain an action for the con- version of the mortgaged property against one taking the same from her possession, though, as against her husband, the statute of limitations would have been a bar to the enforcement of a por- tion of the debt at the time of the execution of the mortgage." c. Excessive Statement of Indebtedness. — The fact that the statement of the amount secured by a mortgage is incorrect does 65. Bame v. Drew, 4 Den. 387, Y. 219; Spaulding v. Keyes, 125 S6. Bishop V. Cook, 13 Barb. 326. N. Y. 113. See section 37 of the Personal Prop- 68. Stanley v. Nat. Union Bank, 115 erty Law, providing: "The question N. Y. 123; Manchester r. Tibbetts, 121 of the existence of fraudulent intent N. Y. 319. See also Levy v. Hamilton, in cases arising under this article is a 68 App. Div. 277, 74 N. Y. Supp. 159. question of fact and not of law." 69. Manchester v. Tibbetts, 181 67. Manchester v. Tibbetts, 131 N. N. Y. 819. 122 Chattel Moetgages. not fer se render the mortgage fraudulent.''" But an overstate- ment of the sum is a badge of fraud and may afford, together with the other circumstances in the case, ground upon which the jury- may find the mortgage fraudulent.'^ If held fraudulent by reason of an excessive statement of the debt, it is not available to the mortgagee, even for the amount actually due.'^ Where a mortgage was executed by a husband to his wife for $15,000, when he owed her only $1,800, and when he knew that he was about to be made a defendant in a negligence suit, it was held that the mortgage was fraudulent, and not available to the mortgagee even to the extent of her bona fide claim.'^ Where a mortgagor in embarrassed circumstances gave a mortgage upon nearly all his property valued at from $500 to $600 to his brother-in-law conditioned for the payment of $300, when there was in fact nothing due and the only liability was the signing by the mortgagee of a $100 note with the mortgagor, it was held that the mortgage was fraudulent.''* d. Effect of Consideration. — The consideration given for a chattel mortgage is always a highly important circumstance in ascertaining whether it 'was given in fraud of creditors,"* but it is by no means conclusive. A mortgage may be held fraudulent though based upon a valuable consideration, for, to be valid, it is essential that it be also given in good faith.'° Upon the other 70. Miller v. Lockwood, 33 N. Y. 74. Bailey v. Burton, 8 Wend. 293; Frost v. Warren, 42 N. Y. 339. 304 ; Walker v. Snediker, Hoff. Ch. 75. Proof of Consideration. — In an 145. action by a mortgagee of chattels 71. McKinster v. Babcock, 26 N. Y. against a sheriff who has levied an 378; Miller v. Lockwood, 32 N. Y. execution against the mortgagor 293; Marsden v. Cornell, 62 N. Y. thereof, where the defendant claims 21.5; Diwer v. McLaughlin, 2 Wend. that the mortgage is fraudulent, it is 596. not error to permit plaintiff to prove 72. Levy v. Hamilton, 68 App. Div. the consideration thereof. Knapp v. 277, 74 N. Y. Supp. 159; Johnson v. Gregory, 20 N. Y. Supp. 21. Philips, 2 N. Y. Supp. 432. See also 76. Blennerhassett v. Sherman, 105 Walker v. Snediker, Hoff. Ch. 145. U, S. 100; Billings V. Russell, 101 73. Levy v. Hamilton, 68 App. Div. N. Y. 226; Hyde v. Bloomingdale, 23 277, 74 N. Y. Supp. 159. Misc. 728, 51 N. Y. Supp. 1025. FEAUDtTLEITT MoETGAGES. 123 hand, it is expressly provided by statute that " a transfer or charge shall not be adjudged fraudulent as against creditors or pur- chasers, solely on the ground that it was not founded on a valuable consideration." ^^ Thus, a mortgage, given upon the chattels of one person to secure a loan to another, is not necessarily fraudu- lent." Sec. 5. Mortgage Fraudulent in Part. Where a mortgage is deemed fraudulent as to a portion of the property secureci thereby, as where the mortgagor is imlawfuUy authorized to dispose of a part of the goods, the entire mortgage is affected by the fraud.'" And where a mortgage is fraudulent because a large portion of the indebtedness stated in the mortgage to be secured thereby is fictitious, the mortgage is fraudulent as to the bona fide indebtedness.'" But where a mortgage is given by a mortgagor to two mortgagees with intent to defraud his creditors, it may be void as to one mortgagee who is a party to the fraudulent scheme and valid as to the one not participating in the fraud.*^ Sec. 6. Who May Attack Fraudulent Mortgage. a. Creditors. — A creditor at large of a mortgagor is not in a position to attack a mortgage given by his debtor; he must first procure a judgment and execution or some specific lien against the property.*^ By attaching the property as that of the mort- 77. Personal Property Law, § 38. ' 80. Levy r. Hamilton, 68 App. Div. See Pochell v. Read, 20 App. Div. 277, 74 N. Y. Supp. 159; Johnson v. 208. Philips, 2 N. Y. Supp. 432. , 78. Hincks v. Field, 14 N. Y. Supp. 81. Smith v. Post, 1 Hun 516, 3 247, 37 St. Rep. 724, aff'd, 129 N. Y. T. & C. 647. 633, mem. 82. Skilton t>. Codington, 86 App. 79. Russell v. Winne, 37 N. Y. 591; Div. 166, 83 N. Y. Supp. 351, rev'd Hedges v. Polhemus, 9 Misc. 680, 30 on other grounds, 185 N. Y. 80. N. Y. Supp. 556 ; Mittnaeht v. Kelley, A creditor at large cannot assail 3 Keyes 407; Dodds v. Johnson, 3 T. an assignment or other transfer of & C. 215. See also Goodhue v. property by the debtor as fraudulent Berrien, 2 Sandf. Ch. 630 ; Spies v. against creditors, but must first estab- Boyd, 1 E. D. Smith 445. lish his debt by a judgment of a 124 Chattel Mortgages. gagor, he acquires a lien thereon and may impeach the title of the mortgagee.*' Where the creditor has a mortgage to secure his debt, he may attack a prior mortgage upon the same property on the ground that it is fraudulent as to the creditors of the mortgagor.'* If the creditor has levied upon personal property of his debtor under a valid judgment, he may bring a suit in equity in aid of his execution to procure an adjudication that a chattel mortgage upon such property is void as against his judgment.'' And where the mortgagee takes possession of and sells the mort- gaged property before the creditor obtains a judgment and execu- tion against the same, the creditor can compel the mortgagee to account for the value thereof." b. Executor, Administrator, Assignee or Trustee. — By virtue of section 19 of the Personal Property Law (formerly chapter 314 of the Laws of 1858) certain representative persons are authorized to assail mortgages fraudulent as against their bene- ficiaries. The statute provides as follows : "An executor, admin- istrator, receiver, assignee or trustee, may, for the benefit of cred- itors or others interested in personal property, held in trust, dis- affirm, treat as void and resist any act done, or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate, or property, and a person who fraudu- lently receives, takes or in any manner interferes with the personal court of competent jurisdiction, and 83. Frost v. Mott, 34 N. Y. 253. either acquire a lien upon the specific Justice's Court Judgment. — A property, or be in a situation to per- creditor with a judgment rendered by feet u lien, and subject it to the pay- a justice of the peace may attack ment of his judgment upon the re- a chattel mortgage given by his moval of the obstacle presented by debtor, and may do so though the the fraudulent assignment or transfer. judgment is obtained upon attach- Southard V. Pinckney, 5 Abb. N. C. 184. ment. Bailey v. Burton, 8 Wend. Creditors of a husband cannot 339. attack a mortgage executed by a 84. Anderson v. Hunn, 5 Hun 79. husband and wife on the ground that 85. Robinson V. Hawley, 45 App. it is fraudulent as to the creditors Div. 287, 61 N. Y. Supp. 138. of the wife without showing that she 86. Pfeiffer v. Roe, 108 App. Div. had some creditors. Bigelow v. Goble, 54, 95 N. Y. Supp. 1014. See also 9 App. Div. 391, 41 N. Y. Supp. 399. Murtha v. Curley. 15 J. & S. 393. rEAtTDULEJS^T llOETGAGES. 125 property of a deceased person, or an insolvent corporation, associ- ation, partnership or individual is liable to such executor, adminis- trator, receiver or trustee for the same or the value thereof, and tor all damages caused by such act to the trust estate. A creditor o£ a deceased insolvent debtor, having a claim against the estate of such debtor, exceeding in amount the sum of one hundred dollars, may, without obtaining a judgment on such claim, in like manner, for the benefit of himself and other creditors interested in said estate, disaffirm, treat as void and resist any act done or convey- ance, transfer or agreement made in fraud of creditors or maintain an action to set aside such act, conveyance, transfer or agreement. Such claim, if disputed, may be established in such action. The judgment in such action may provide for the sale of the property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper surrogate's court to be administered according to law." " A suit may be brought by such a person for the benefit of creditors, though the creditors have not procured judgments upon their claims.'* 87. An administratOT may disafiOirm ceedings has the same right as a a chattel mortgage executed by his creditor to prosecute actions to set testator in fraud of creditors and aside all transfers of property made maintain an action against the mort- by the debtor in fraud of creditors, gagee for property taken by him The right of the receiver in this re- under the mortgage. Potts v. Hart, spect is not confined to the property 89 M. Y. 168. fraudulently assigned; he may follow Ths public administrator of a, de- the proceeds of a sale thereof in the ceased insolvent mortgagor represents possession of any person not a bona the creditors as well as the estate fde holder or ov.ner. Mandeville v. and ir.ny avoid a mortg:ige authoriz- Avery, 124 N. Y. 376; Hedges v. Pol- ing the mortgagor to sell the prop- hemus, 9 Misc. 680, 30N. Y. Supp. 556. erty for his o^vn benefit. Hangen v. A trustee in bankruptcy can avoid Hochemeister, 114 N. Y. 566. a fraudulent chattel mortgage given An assignee for creditors may by the bankrupt. Zartman v. First assail u. mortgage under this statute. Nat. Bank, 189 N. Y. 267; Pfeiffer v. Eeynolds v. Ellis, 103 N. Y. 115; Eoe, 108 App. Div. 54, 95 N. Y. Supp. Ball V. Slafter, 26 Hun 353, aff'd, 98 1014; Southard v. Pinckney, 5 Abb. N. Y. 622; Lain v. Sayer, 50 App. N. C. 184; In re Hartman, 185 Fed. /Div. 554, 64 N. Y. Supp. 248. 196. A receiver in supplementary pro- 88. Southard v. Benner, 72 N. Y. 424. 126 Chattel Moetgages. CHAPTER VIII. RIGHTS AND REMEDIES OF MORTGAGOR. Sec. 1. Transfer of Property. a. Before Default. b. After Default. c. Fraud in Not Disclosing Mortgage. d. Criminal Liability. 2. Possession of Property. 3. Action at Law. a. In General. / b. Against Mortgagee. c. Damages. 4. Equity of Redemption. 5. Necessity of Tender in Action to Redeem. 6. Scope of Relief in Action to Redeem. Sec. 1. Transfer of Property. a. Before Default. — Before default a mortgagor may sell or mortgage the chattels, and the purchaser may hold the same subject to the mortgage.^ Such a purchaser may again, before default, sell and deliver to another with the like effect, and in such case the remedy of the mortgagee, upon maturity of the mortgage debt, is to follow the property and recover it from the possession of the last purchaser.^ If a second mort7here such a lien exists at the commencement of the action. The action may be brought in any court, of record or not of record, which would have jurisdiction to render a judgment, in an action founded upon a contract, for a sum equal to the amount of the lien." "* c. Warrant to Seize Chattel. — " Where the action is brought in the Supreme Court, the city court of the city of New York, or a county court, if the plaintiff is not in possession of the chattel, a warrant may be granted by the court, or a judge thereof, com- manding the sheriff to seize the chattel and safely keep it to abide the final judgment in the action. The provisions of title third of chapter seven of the Code of Civil Procedure apply to such war- rant, and to the proceedings to procure it, and after it has been issued, as if it was a warrant of attachment, except as otherwise expressly prescribed in this article." ^'° d. Judgment. — " In an action brought in a court specified in the last section, fibal judgment, in favor of the plaintiff, must specify the amount of the lien, and direct a sale of the chattel to satisfy the same and the costs, if any, by a referee appointed thereby, or an officer designated therein, in like manner as where a sheriff sells personal property by virtue of an execution; and the application by him of the proceeds of the sale, less his fees and expenses, to the payment of the amount of the lien, and the 133. See Lembeck, eic., Brewing Ck). moving papers the matters required V. Sexton, 184 N. Y. 185, 190. by section 636 of the Code of Civil 134. Lien Law, § 306. Procedure. Coiro v. Baron, 158 App. 135. Lien Law, § 307. Div. 591, 143 N. Y. Supp. 853, over- Reference to Code of Civil Procedure, ruling Faraci v. Waller, 154 App. Div. — The mortgagee is entitled to the 3Q3, 13-8, N. Y. Supp. 961. warrant without setting forth in his 160 Chattel Mortgages. costs of the action. It must also provide for the payment of the surplus to the owner of the chattel, and for the safe keeping of the surplus, if necessary, until it is claimed by him. If a defend- ant, upon whom the summons is personally served, is liable for the ataiount of the lien, or for any part thereof, it may also award payment accordingly." "° e. Action in Inferior Court. — " Where the action is brought in a court, other than one of those specified in section two hun- dred and seven, if the plaintiff is not in possession of the chattel, a warrant, commanding the proper officer to seize the chattel, and safely keep it to abide the judgment, may be issued, in like man- ner as a warrant of attachment may be issued in an action founded iipon a contract, brought in the same court; and the provisions of law, applicable to a warrant of attachment, issued out of that court, apply to a warrant, issued as prescribed in this section, and to the proceedings to procure it, and after it has been issued; except as otherwise specified in the judgment. A judgment in favor of the plaintiff, in such an action, must correspond to a judg- ment, rendered as prescribed in the last section, except that it must direct the sale of the chattel by an officer to whom an execu- tion, issued out of the court, may be directed ; and the payment of the surplus, if its safekeeping is necessary, to the county treasurer, for the benefit of the owner." ^'' f. Application of Foregoing Sections. — " Sections 206 to 209, inclusive, do not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action ; and they do not apply to a case where another mode of enforcing a lien upon a chattel is specially prescribed by law." ^'' Sec. H. Action for Deficiency. After a fair and hona fide sale under the power of sale contained in a mortgage or after the termination of a suit to foreclose the mortgage, if the mortgage debt is not satisfied, the mortgagee may 136. Lien Law, § 308. 188. Lien Law, § 210. 137. Lien Law, § 209. Eights and Remedies of Mobtgagee. 161 sue for the balance.^** The liability of the mortgagor for a deficiency arising on a chattel mortgage sale arises out of the foreclosure as a matter of law; he is liable though there is no provision in the mortgage providing that he shall be liable there- for.^*" If the mortgagee retains the property without making a sale thereof or foreclosure of the mortgage, he waives his claim for deficiency/*^ He cannot recover the deficiency where he takes the property before the maturity of the debt under the danger clause where he did not in good faith deem himself insecure/*^ But a valid taking under the danger dause and a sale of the chat- tels renders the mortgagor liable to the mortgagee for the defici- ency, though the time of payment specified in the mortgage has not passed."* Sec. 12. Action in Equity to Determine Priority. A mortgagee may bring a suit in equity to determine the question of priority between several chattel mortgages covering the same property.^** The defense that the mortgagee may not resort to equity because he has certain actions at law is not tenable; equity assumes jurisdiction on the ground that conflict- ing claims and questions of priority can best be adjusted in equity.'" 139. Sherman v. Slayback, 58 Hun 140. Willcox v. Perez, 115 App. Div. 255, 12 N. Y. Supp. 291; Olcott v. 693, 101 N. Y. Supp. 391. Tioga R. Co., 40 Barb. 179, af'd, 27 141. Sherman v. Slayback, 58 Hun N. Y. 546; Pulver v. Richardson, 3 255, 12 N. Y. Supp. 291. T. & C. 436; Case v. Boughton, 11 142. Hyer v. Sutton, 59 Hun 40, 13 Wend. 106. N. Y. Supp. 378; Oppcnheimer v. A mortgage, on condition that if Moore, 107 App. Div. 301, 95 N. Y. the mortgagor pays to the mortgagee Supp. 138. the amount of a note of even date 143. Huggans v. Fryer, 1 Lans. the mortgage shall be void, acknowl- 276. edges a debt of the specified sum, and 144. Salmon v. Norris, 82 App. the mortgagee, selling the chattels Div. 362, 81 N. Y. Supp. 892. See pursuant to the mortgage, may sue also Ostrander v. Weber, 114 N. Y. for deficiency. Consumers' Brewing 95. Co. of Brooklyn v. Braun, 132 N. Y. Supp. 87. 11 162 Chattel Moetgages. Sec. 13. Jurisdiction of Municipal Court of New York in Actions to Enforce Mortgage. Section 73 of the Municipal Court Act provides in substance that no action of conversion, or replevin arising on a chattel mort- gage or contract of conditional sale shall be maintained against a conditional vendee or mortgagor. But, according to the pro- visions of section 77, section 73 does not affect any right or remedy to foreclose or satisfy a lien upon a chattel without action, and does not apply to a case where another mode of enforcing a lien upon a chattel is specially prescribed by law. This statutory pro- vision is not applicable to a mortgage given to secure a loan.^*° It does not preclude the mortgagee from taking possession of the mortgaged property under a clause in the mortgage giving him such right,^*' or from maintaining an action of replevin to recover such possession.^** An action for a deficiency arising on a sale under a chattel mortgage is not an action on the mortgage and is not barred by this section.^** i 145. Salmon v. Norris, 83 App. Div. 148. Fidelity Loan Assoc, v. Con- 362, 81 N. Y. Supp. 893. nolly, 95 N. Y. Supp. 576. 146. Fidelity Loan Assoc, v. Con- 149. Willeox 1). Perez, 115 App. Div. nolly, 93 N. Y. Supp. 352. 693, 101 N. Y. Supp. 391. 147. Shelton V. Holzwasser, 46 Misc. 76, 91 N. Y. Supp. 328. Chattel Moetgages. 163 CHAPTER X. RIGHTS AND LIABILITIES OF THIRD PAETrES. Sec. 1. Creditors. a. In General. b. Levy upon Mortgaged Property. c. Other Remedies of Creditors. 2. Surety. 3. Lienors. a. In General. b. Hotel, Inn, Boarding-house Keeper, etc. c. Bailee of Animals. d. Bailee of Motor Vehicles. e. Warehouseman. 4. Subsequent Mortgagee. Sec. 1. Creditors. a. In General. — The rights of creditors of the mortgagor to attack a mortgage for failure to file,^ or refile^ the same, or upon the ground that it was intended to delay, hinder or defraud cred- itors,* have been discussed in other chapters of this work. b. Levy upon Mortgaged Property. — A mortgagee of personal property is deemed to have the legal title thereto and such property may properly be levied upon under an execution against him.* And this is true though the property remains in the posseaiiari of the mortgagor.' The mere equity of redemption is not the subject of levy and sale, and, where such is the only interest of the mortgagor, the 1. See supra, the chapter Filing, 4. Saratoga Holding Co. v. Wash- p. 58. burn, 70 Misc. 110, 127 N. Y, Supp. 2. See supra, the chapter Refiling, 1016; Haskins v. Kelly, 1 Abb. Pr., p. 91. N. S., 63, 1 Rob. 160. 3. See supra, the chapter Praudu- 5. Ferguson v. Lee, 9 Wend. 258. lent Mortgage, p. 106. 164 Chattel Moetgages. property cannot be levied upon under an execution against him.' Thus, where the mortgagor is in default, as his only interest in the property is an equity of redemption, it cannot be levied upon under process against him/ And this is so though the mortgagor continues to retain possession of the property after the default.' And where the mortgagee has possession of the property, the mortgagor has no leviable interest in the property, though the mortgage debt is not yet due.® Thus, where a mortgage provided that the mortgagor should permit the mortgagee to " have, possess, occupy, and enjoy," the mortgaged property, whenever he should demand the same and after the mortgagor had absconded, the mortgagee took possession of the property by virtue of the mort- gage it was held that the interest of the mortgagor was not the subject of levy upon execution, although the debt secured by the mortgage had not, at the time of the levy, become due.^" 6. Galen v. Brown, 23 N. Y. 37; Stewart v. Beale, 7 Hun 405, aff'd, 68 N. Y. 629, mem.; National Cash Reg. Co. V. Coleman, 85 Hun 125, 32 N. Y. Supp. 593; Craft v. Brandow, 61 App. Div. 247, 70 N. Y. Supp. 364; Fishel V. Hamilton Storage Warehouse Co., 42 Misc. 532, 86 N. Y. Supp. 196; Marsh v. Lawrence, 4 Cow. 461; Hendricks v. Robinson, 2 Johns. Ch. 283; Nichols v. Mead, 2 Lana. 222, aff'd, 47 N. Y. 653, mem 7. Galen v. Brown, 33 N. Y. 37; Porter v. Parmley, 52 N. Y. 185; Manchester v. Tibbetts, 121 N. Y. 219; Leadbetter v. Leadbetter, 125 N. Y. 290; Stewart v. Beale, 7 Hun 405, aff'd, 68 N. Y. 629, mem.; Craft v. Brandow, 61 App. Div. 247, 70 N. Y. Supp. 364; Fishel v. Hamilton Stor- age Warehouse Co., 42 Misc. 532, 86 N. Y. Supp. 196; Keefer V. Greene, 16 N. Y. Supp. 498; Farmers' Bank of Washington County v. Cowan, 2 Abb. Dec. 88, 2 Keyes 217; Cbamplin V. Johnson, 39 Barb. 606; Bryan v. Smith, 13 Daly 331; Kleinberger v. Brown, 26 J. & S. 4, 8 N. Y. Supp. 866. 8. Cbamplin v. Johnson, 39 Barb. 606; Bryan v. Smith, 13 Daly 331; Kleinberger v. Brown, 26 J. & 8. 4. 9. National Cash Reg. Co. v. Cole- man, 85 Hun 125, 32 N. Y. Supp. 593; Powers v. Elias, 21 J. & S. 480. After a mortgagee has taken pos- session of the mortgaged property, by virtue of a power in the mort- gage, the mortgagor has no remaining interest in it which can be seized and sold on execution, even though the mortgage debt is not i 133 App. Div. Foreclosure of Mortgage. — Where 4i6; Crocker- Wheeler Co. v. Genesee property purchased under a condition- Recreation Co., 160 App. Div. 373, 145 al sale is annexed to the realty, in a N. Y. Supp. 477; Jermyn V. Schwep- suit for the foreclosure of a mortgage penihauser, 33 Mise. 603, 68 N. Y. upon the realty, the conditional ven- Supp. 153. But see Kerby V. Clapp, dor is not a necessary party. Wash- 15 App. Div. 37, 44 N. Y. Supp. 116. ington Trust Co. v. Morse Iron Works, Knowledge of Vendor. — In the ab- 187 N. Y. 307. sence of statute, the conditional ven- 37. Kirk v. Crystal, 118 App. Div. dee can pass to third persons no 33, 103 N. Y. Supp. 17. better title than he himself possessed, 220 Conditional Sales. ■unless the vendor is estopped from asserting Ms title, as where he sold the goods with the understanding that the conditional vendee intended to af- fix the property to a building of an- other party; but where the vendor has no knowledge that the goods were to be so disposed of, he can recover the same from the owner of the prem- ises. Jermyn v. Schweppenhauser, 33 Misc. 603, 68 N. Y. Supp. 153. Efiect of Vendor Filing Mechanics' Lien. — Where a conditional vendor of a heating plant to be installed in the vendee's building, after the in- stallation and sale of the premises by the vendee, files a mechanic's lien against the interest of the vendee in the premises for the amount unpaid on the heating plant, he will not be entitled to recover the property under the conditional contract, as the as- sertion of a mechanic's lien is incon- sistent with an assertion of owner- ship of the property. Kirk v. Crystal, 118 App. Div. 32, 103 N. Y. Supp. 17. Mortgage on Premises. — Where, without the knowledge of the owner of a tenement house under process of construction, a person furnished the contractor with ranges for heating and cooking purposes, under a con- tract of conditional sale, they became fixtures when annexed to the realty by the contractor, and are covered by the lien of a prior mortgage given by the owner, although the contractor failed to pay the purchase price. The lien of a mortgage covers all that was realty when the mortgage was ac- cepted as security, and all accessions to the realty except where by valid agreement to which the mortgagee is a party, the character of chattels is impressed upon accessions. Mechanics and Traders' Bank v. Bergen Heights Eealty Corp., 137 App. Div. 45, 122 N. Y. Supp. 33. See also Washington Trust Co. V. Morse Iron Works and Dry Dock Co., 106 App. Div. 195, 94 N. Y. Supp. 495, mod., 187 N. Y. 307. Conditional Sales. 221 CHAPTER XVII. FILING, EEFILING AND DISCHARGE FROM RECORD. Sec. 1. Statute. 2. Purpose and Construction of Statute. 3. Necessity of Filing. a. In General. b. Contract for Goods to Be Subsequently Delivered. 4. Place of Filing. 6. Indorsement, Entry, Refiling and Discharge. 6. Conditional Sale of Railroad Equipment or Rolling Stock. 7. Who May Attack for Failure to File or Refile. a. Parties to Contract. b. Purchaser. e. Mortgagee. d. Fledgeee. e. llovtgagee or Vendee of Realty to Which Property Is Annexed. f. Creditor. g. Trustee in Bankruptcy. Sec. 1. Statute. Section 62 of the Personal Property Law provides for the fil- ing of contracts of conditional sales as follows : " Except as other- wise provided in this article, all conditions and reservations in a contract for the conditional sale of goods and chattels, accompanied by delivery of the thing contracted to be sold, to the effect that the ownership of such goods and chattels is to remain in the condi- tional vendor or in a person other than the conditional vendee, until they are paid for, or until the occurrence of a future event or contingency, shall be void as against subsequent purchasers, pledgees or mortgagees, in good faith, and as to them the sale shall be deemed absolute, unless such contract of sale, containing such conditions and reservations, or a true copy thereof, be filed as directed in this article, and unless the other provisions of the lien law applicable to such contracts are duly complied with. 222 Conditional Sales. Every such contract for the conditional sale of any goods and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been duly and properly filed and indexed as directed in this article, and unless said contract shall contain a brief description, sufficient for identification, of the premises which said building occupies, or upon which said building stands, and if in a city or village its location by street number, if known, and if in a city or county where the block system of recording and indexing conveyances is in use, the section and block within which it is located." Sec. 2. Purpose and Construction of Statute. The purpose of the statute is to give some protection against loss or injury to persons buying personal property from those who have all the outward indicia of ownership by possession and use of it.^ The statute being one that changes the common law, is to be held to abrogate it only so far as the clear import of the language absolutely requires.^ It contemplates the making and filing of an agreement for each sale and not an omnibus agreement in advance for future sales.' Sec. 3. Necessity of Filing. a. In General. — The statute requires the filing of a contract of conditional sale to render the condition operative as against 1. Campbell Printing Press, etc., Co. their possess ian." Graves Elevator V. Oltrogge, 13 Daly 247. Co. ». Callanan, 11 App. Div. 301, i2 « The reason for the enactment of '^ '^J^^^ |^i^;,^t„^ ^ ^ Callanan, the law providing for the filing of con- n App. Div. 301, 4,2 N. Y. Supp. 930 ; tracts for conditional sales was to Crocker-Wheeler Co. v. Grenesee Kec- protect those purchasing in good faith ^eation Co., 160 App. Div. 373, 145 i- 1 * ^1, fi 1, • N. Y. Supp. 477. articles from those apparently having ^ g^^^^^ ^ j,j^^^ ^3^ . ^^^ the title to the same as evidenced by 531, 114 jj. Y. Supp. 86. Filing, Eefiliitg and Dischakge feom Kecoed, 223 purchasers, pledgees, or mortgagees in good faith.* In spme cases, even before the enactment of the statute, such conditions were not enforceable/ The necessity for filing is not avoided by making the contract in the form of a lease.® Where the agree- ment is made in Nevs^ York State, but by the terms thereof the property is to be delivered to the vendee in New Jersey, and is there to be kept -and paid for, the transaction is governed by the law of New Jersey and the New York statute requiring filing is not applicable.' For a period prior to 1905 contracts of conditional sales of certain property were not required to be filed where they had been executed in duplicate and one copy retained by the vendee.* b. Contract for Goods to Be Subsequently Delivered. — The statute, before an amendment in 1904, was construed as inapplica- ble to a contract where the goods were to be manufactured or delivered long after the execution of the contract." The amend- 4. See Gerber v. Mandel, 56 N. Y. Supp. 1030. 5. See supra, the subdivision Com- mon-law Doctrine of Conditional Sales, p. 317. 6. Campbell Printing Press, etc., Co. V. Oltrogge, 13 Daly 847. But if the contract is actually a lease, and not a conditional sale, the statute does not require its filing. Cutler Mail Chute Co. V. Crawford, 167 App. Div. 246, 153 N. Y. Supp. 750. 7. Fiske v. Peebles, 13 St. Rep. 743. 8. See Kerby v. Clapp, 15 App. Div. 37, 44 N. Y. Supp. 116; Grant v. Griffith, 39 App. Div. 107, 56 N. Y. Supp. 791, aif'd, 165 N. Y. 636, mem.; Baldinger v. Levine, 83 App. Div. 130, 82 N. Y. Supp. 483 ; Vincinguerra V. Fagan, 57 Misc. 224. Xbe repeal of former section 115 of the Lien Law, which exempted cer- tain conditional contract sales from the necessity of filing where a dupli- cate copy of the contract was deliv- ered to the purchaser, rendered it necessary to file existing contracts for the conditional sale of such chattels; and the failure to file such contracts rendered them void as against sub- sequent mortgagees in good faith. Vincinguerra v. Fagan, 57 Misc. 224, 109 N. Y. Supp. 317. 9. Graves Elevator Co. v. Callanan, 11 App. Div. 301, 42 N. Y. Supp. 930; Hirsch t;. Graves Elev. Co., 24 Misc. 472, 53 N. Y. Supp. 664; Duntz v. Granger Brewing Co., 41 Misc. 177, 83 N. Y. Supp. 957, aff'd, 96 App. Div. 631, mem.; aff'd, 184 N. Y. 595, mem. The statute requiring the filing of conditional contracts of sale does not refer to a case where the thing sold is to be delivered long after the exe- cution of the contract, nor to a case where the articles are to be manu- factured, and where the contract con- templates after delivery and future vesting of actual possession. Neither will the subsequent delivery of the property to the vendee relate back to the time of the execution of the con- tract and render such contract void 224 Conditional Sales. ment of 1904 changed the previous rule and rendered necessary the filing of such contracts as against the persons named in the statute." Sec. 4. Place of Filing. Section 63 of the Personal Property Law regulates the place for the filing of contracts of conditional sales. It provides as follows : " Such contracts except contracts for the conditional sale of goods and chattels supplied for a building and attached or to be attached thereto, shall be filed in the city or town where the conditional vendee resides, if he resides within the state at the time of the execution thereof, and if not, in the city or tovra where such property is at such time. Such contract shall be filed in the city of New York, as follows, namely: in the borough of Brooklyn in said city, such instrument shall be filed in the office of the register of the county of Kings ; in the borough of Queens in said city, in the office of the clerk of Queens county; in the borough of Richmond in said city, in the office of the clerk of the county of Richmond; in the borough of Manhattan in said city, in the office of the register of the county of New York, and in the borough of the Bronx in said city, in the office of the register of the county of Bronx; in every other city or town of the state, from the begiiming. Graves Elevator N. Y. Supp. 721 ; Breakstone v. Buf- Co. V. Callanan, 11 App. Div. 301, 12 fa.lo Foimdry & Machine Co., 167 App. N. Y. Supp. 930. Div. 63, 152 N. Y. Supp. 39'4 ; McLean Where an order for an engine and v. Bloch, 5S Misc. 545, 102 N. Y. Supp. boiler take- by an agent requires that 838. the order be submitted to the vendor Goods to Be Manufactured. — The fo approval, the fact that the goods failure to file, on or before the date are not delivered until two or three of the delivery of chattels to be af- weeks after the order was given, does fixed to the realty, the contract for not establish that there was no " im- the conditional sale thereof, renders mediate delivery " of the goods within the sale absolute as to bona fide pur- the meaning of the statute relating to chasers or inoumbramceTS, though the comditions/l sales. Such a conditional chattels at the time the contract was sale must be filed as against a subse- made were not in existence, but were quent mortgage in good faith. Grant to be manufactured and deliveired in V. GriflSth, 39 App. Div. 107, 56 N. Y. the future. Crocker-Wheeler Co. v. Supp. TM, aifd, 165 N. Y. 636, mem. Genesee Recreation Co., 140 App. Div. 10. Crocker- Wheeler Co. v. Genesee 726, 125 N. Y. Supp. 731. Becreation Co., 140 App. Div. 726, 135 FlLIlSTG, EeFILING AND DiSCHAEGE FEOM KeCOED. 225 in the office of the city or town clerk, unless there is a county clerk's office in such city or town, in which case it shall be filed in such- office. But all such contracts for the conditional sale of goods and chattels, attached or to be attached to a building, shall be filed with the register of the city or county or with the county clerk of the county, in case there is no register of such county, in which the premises whereon the said building stands are located." Sec. S. Indorsement, Entry, Refiling and Discharge. A single section of the Personal Property Law provides for the indorsement, entry, refiling and discharge of contracts for the con- ditional sale of goods and chattels,^^ It is as follows : " The pro- visions of article ten of the lien law relating t6 chattel mortgages apply to the indorsement, entry, refiling and discharge of contracts for the conditional sale of goods and chattels, except contracts for the conditional sale of goods and chattels, attached or to be attached to a building. The officers with whom such first-mentioned con- tracts are filed shall enter the future contingency or event required to occur before the ownership of said goods and chattels shall pass from the vendor to the vendee, the amount due upon such contract and the time when due. The name of the conditional vendor shall be entered in the column of ' mortgagees,' and the name of the con- ditional vendee in the column of ' mortgagors.' Where such con- tracts are for goods and chattels, attached or to be attached to a building, the following provisions apply to the indorsement, entry, refiling and discharge thereof. The above-named officers, with whom such contracts are directed to be filed, shall enter the future contingency or event required to occur before the ownership of said goods and chattels shall pass from the vendor to the vendee, the amount due upon such contract, and the time when due, and shall file every such contract presented to them for that purpose, and indorse thereon its number and time of receipt ; they shall enter in a book provided for that purpose, in separate columns, the names of all the parties to each contract so filed, arranged in alphabetical 11. Personal Property Law, § 84. 15 226 Conditional Sales. order, under the head of ' vendees ' and ' vendors,' the number of such contract and the date of the filing thereof, and under a col- umn headed ' property,' they shall enter a brief description suf- ficient for identification of the land upon which said building stands, and if in a city or village, its location by street and num- ber, if known, and if in a city or county where the block system of recording and indexing conveyances is in use, the section and block in which the said land is situated. The said officers shall also keep an index, so as to afford correct and easy reference to the books containing the entries in regard to such last-named contracts. In all cities and counties where the block system of recording and indexing conveyances is in use, the index shall be arranged according to the block number^. A contract for the conditional sale of goods and chattels, attached or to be attached to a building, shall be invalid as against creditors of the conditional vendee and against subsequent purchasers or mortgagees in good faith of such goods and chattels or of the premises upon which the said building stands, after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless: (1) within thirty days preceding the expiration of such term a statement containing a description of suoh contract, the names of the parties, the time when and place where filed, the interest of the conditional vendor or of any person who has succeeded to his interest in the property, claimed by virtue thereof; or (2) a copy of such contract and its indorsements, together with a statement attached thereto or indorsed thereon, showing the interest of the conditional vendor or of any person who has succeeded to his interest in the contract, is filed in the office where the contract was originally required to be filed; provided, however, if at the time such contract was executed the premises whereon the said build- ing stands was then in the county of l^ew York but is now lo- cated in the new county of Bronx, then such statement or a copy of suoh contract must be filed in the office of the register of the county of Bronx; and the officer with whom such state- ment or copy of such contract must be filed, as in this section provided, shall enter, in a separate column, in the book above provided for, in a column headed ' date of refiling,' the date of the refiling of the said contract. The officers performing services under this article are entitled to receive the same fees as for like services relating to chattel mortgages. Upon the title to the goods and chattels affected by any such last-mentioned contract becoming absolute in the conditional vendee or his sue- Filing, Refiling and Discharge from Recced. 227 cesser in interest by the payment of the full consideration for which any such contract was made, the conditional vendor, his assignee or legal representative, upon the request of the condi- tional vendee or of any person interested in the property covered by such contract, must sign and acknowledge a certificate setting forth such payment. The officer with whom such contract is filed must, on receipt of such certificate, file the same in his office and write the word ' discharged ' in the book where the contract is entered, opposite the entry thereof, and the contract is thereby discharged." Sec. 6. Conditional Sale of Railroad Equipment or Rolling Stock. A distinct section of the Personal Property Law is devoted to the filing of contracts for the conditional sale of railroad equipment and rolling stock. Section 61 thereof provides: " Whenever any railroad equipment and rolling stock is sold, leased or loaned under a contract which provides that the title to such property, notwith- , standing the use and possession thereof by the vendee, lessee or bailee, shall remain in the vendor, lessor or bailor, until the terms of the contract as to the payment of installments, amounts or rentals payable, or the performance of other obligations there- under, are fully complied with, and that title to such property shall pass to the vendee, lessee or other bailee on full payment therefor, such contract shall be invalid as to any subsequent judgment creditor of or purchaser from such vendee, lessee or bailee for a valuable consideration, without notice, unless 1. Such contract is in writing, duly acknowledged and recorded in the book in which real estate mortgages are recorded in the office of the county clerk or register of the county in which is located the principal office or place of business of such vendee, lessee or bailee; and unless 2. Each locomotive or car so sold, leased or loaned, has the name of the vendor, lessor or bailor, or of the assignee of such vendor, lessor or bailor, plainly marked upon both sides thereof, followed by the word owner, lessor, bailor or assignee, as the case may be." 228 Conditional Sales, This section does not apply to chattels used upon a mere tempo- rary road of rails, having none of the characteristics of a common carrier, such as locomotives which are used hy a contractor in construction work and which are not capable of use in the usual operation of trains upon a railroad.^^ Where a mortgage of rail- road property is foreclosed and the property is bid in by the bondholders, they are subsequent purchasers in good faith within this section.^* Sec. 7. Who May Attack for Failure to File or Refile. a. Parties to Contract. — A contract of conditional sale is valid and enforceable between the parties though it is not filed/* b. Purchaser. — The condition in an unfiled contract of con- ditional sale is ineffective as agaiiist a subsequent purchaser in good faith from the vendee.^' But a purchaser from the conditional vendee with actual notice of the conditional contract is not a pur- chaser in good faith and cannot attack the condition on the ground of failure to file the contract.^" Where the subsequent purchase is by installments, the purchaser is protected as to payments made 12. /n re Ferguson Contracting Co., The defense that the contract was ■^^?/ w ^5°' ^. -w^ ,. r^t r. subject to the law relative to con- 13. Westinghouse Elec. & Mfg. Co. ,... , , j x. . .. , . , . V. New VaAtz, etc.. Traction Co., 32 and , of the same place, by occupation a , do hereby jointly and severally undertake. FoBMS. 255 promise and agree to and with the said defendant, that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs which may be awarded to said defendant, and' all damages which he may sustain by reason of said warrant, not exceeding dollars. Date, {Aeknotoledgment, justification, and approval to be added.) No. 9. AFFIDAVIT FOR WARRANT FOR SEIZURE OF CHATTEL. SUPREME COURT — Deiawabe County. James K. Smith against RiCHABD R. Jones. State or New Yobk, J County of Delaware. j James K. Smith, being duly sworn, deposes and says that he is the plain- tiff in the above-entitled action; that he resides at ; that he is the owner and holder of a certain chattel mortgage made and executed by Richard R. Jones to this plaintiff, which said mortgage is dated ; and was filed in the ofiBce of the clerk of the town of ; such town being the town where the defendant, the mortgagor, resided at the time of the execution of said mortgage; that such mortgage is given to secure an indebtedness of dollars owing by the defendant to the plaintiff; that said mortgage became due and payable on the day of , 19 , and that no part thereof has been paid; that the property mentioned and described in said chattel mortgage and pledged and incumbered thereby consists of {Desmihe property mortgaged.) That this action is brought to foreclose said chattel mortgage and the lien thereby created upon said personal property. That the above-described property is now in the possession of , at , county, N. Y., and that such possessor refuses to deliver 256 FoEMs. possession of said chattels to the plaintiff, though the plaintiff duly demanded such possession before the commencement of this action. That said personal property and chattels are worth the sum of dollars. That no previous application has been made in this action for a warrant to seize said property. Sworn to before me this, etc. No. 10. WAEJRANT FOR SEIZURE OF CHATTEL. The People of the State of New York: To the Sheriff of the County of Delawwre: Wheeeas, in an action brought in the Supreme Court of the State of New York, an application has been made to the justice granting this warrant, by James K. Smith, the plaintiff, for a warrant to seize and safely keep the chattels hereinafter described, to abide the final judgment in said action, in which said James K. Smith is plaintiff and Uichardi R. Jones is defendant; and it appearing to the satisfaction of the justice granting this warrant, that a cause of action such as is specified, in sections 206 to 210 inclusive of the Lien Law exists in favor of the plaintiff and against the defendants to foreclose a lien for the sum of dollars, upon said chattels, and that the plaintiff is now in the possession of said chattels, and the plaintiff having given the undertaking required by law, YOU ABE HEREBY COMMANDED to seize the following chattels, to wit.: {Describe property.) such chattels being the chattels and property described in the complaint in this action and in the affidavit of the plaintiff, or so much thereof as may be found within your county, and to safely keep the same to abide the final judgment in the action, and that you proceed herein in the manner and make your return within the time required of you by law. Given under the hand of one of the justices of the Supreme Court at the chambers in the of , this day of , 19 . Justice of the Supreme Gourt. Plaintiff's Attorney, Office amd P. 0. Address, , m T. FoEMs. 25T No. 11. ASSIGNMENT OF MORTGAGE. This instrument, made this day of , 19 , between , of the of , of the flrai part, and , of , of the second part; V/ITNESSETH, That the part of the first part, for a good and valuabla considerntlon to in hn!)(I paid by the part of the second part, ha sold, assigned, and 1 -rsferred, and do liereby s-.-':. a?sign, and transfer to the part ct the second part, a certain chitt;') mortgage bearing date the ' day of , 19 , made ".-7 And filed in the clerk's office of county, on the day of ! 19 , at o'clock M., together with the debt thereby secured, and all sums of money due and to grow due thereon. And the part of the first part hereby covenant that there is due on said mortgage, the sum of In witness whereof, The part of the first part, ha hereunto set hand and seal the day and year first above written. State op New York, 1 County of , ^ **-' On this day of , in the year one thousand nine hundred and , before me, the subscriber, personally appeared , to me personally known to be the same person described in and who executed the within instrument, and he acknowledged that he executed the same. No. 12. SATISFACTION OF MORTGAGE. Do hebebt cbbtitt. That a certain chattel mortgage bearing date the day of , one thousand nine hundred and , made and executed by and filed in the office of the clerk of the of , on the day of , in the year one thousand nine hundred and , at o'clock minutes m., is with the debt thereby secured, fxjllt paid and satisfied. And I hereby consent that the same be discharged of record. Dated, the day of ,19 {Add acknowledgment.) 17 258 FoEMs. No. 13. STATEMENT OF MORTGAGEE ON RENEWAL OP MORTGAGE. To All Whom It May Concern: Take notice: That, whereas, did, OD the day of , 19 , execute and deliver tq a, certain chattel mortgage bearing date on that day to secure the payment of the sum of $ , payable one day after date, and whereas he mortgaged certain chattels and' fixtures and other property then in the premises known as No. street, in the City of , a copy of which said mortgage waa filed in the office of the Register of the County of on the day of , 19 , and annually refiled, the last renewal thereof being by notice filed in said office on the day of ,19 , as provided by law, and whereas there still remains unpaid thereon the sum of $ , with interest from (if the mortgage has ieen assigned, recite the assign- ment to show the interest of the person who has succeeded to the interest in the property claimed under the mortgage.) Now, therefore, I, , the mortgagee therein named (or in case of assignment, as the fact may 6e), do hereby claim an interest in said mortgaged property pursuant to the said mortgage, to the extent of the sum last mentioned, this statement being made and filed to continue the notice required by the statute made and provided for the renewal of chattel mortgages. Dated, the day of , 19 . (Signed) Uortgagee. No. 14. STATEMENT OF MORTGAGEE ON REFILING COPY OP MORTGAGE. I, the undersigned, the mortgagee named in the mortgage, of which the foregoing instrument is a true copy (or the assignee, as the case may 6e), do hereby give notice, certify and state that there remains due and unpaid on the above-mentioned mortgage, and claim that there is secured thereby, the sum of $ , and interest from , and this copy and statement are filed to continue the notice required by the statute made and provided for the renewal of chattel mortgages. Dated, the day of , 19 . Mortgagee. (File full copy of original mortgage and its endorsements at same time.) FoEMs. 259 No. 15. NOTICE OF SALE UNDER CHATTEL MORTGAGE. By virtue of a chattel mortgage, executed by , to , dated on the day of 19 , and which was duly filed in the office of the clerk of the of , on the day of , 19 , I will expose for sale at public auction at , in the said of , on the day of , 19 , at o'clock in the forenoon of that day, the following goods and chattels, to wit: {Specify chattels.) Dated, the day of , 19 . (Signed) Mortgagee's Agent. No. 16. CONTRACT OF CONDITIONAL SALE. This agreement, made this day of , 19 , between A. B., of the city of Albany, N. Y., party of the first part, and C. D., of the same place, party of the second part: WITNESSETH, The Said party of the first part has this day delivered to the said second party the following personal property, to wit: {Eere insert description.) upon the terms and conditions hereinafter agreed. The said second party agrees to receive said property and to pay said first party therefor the sum of dollars, in installments, as follows: the sum of dollars on the day of each and every month hereafter until the whole sum of dollars is fully paid. It is expressly understood and agreed that the absolute legal title to all of said property is to remain in said first party until the sum of dollars is paid in full and the said second party shall have no title to said property until said sum of dollars is fully paid. It is further agreed that in the event of the failure of said second party to pay any of said installments when the same shall become due, then the said first party may enter upon the premises and search for said property on the premises and in the house and buildings occupied by said second party, and take possession of and remove said property therefrom, with or without any legal process, and in such ease it is also expressly agreed that said first party may retain all the installments previously paid, as and for com- pensation for the use of said property by said second party. 260 FoEMs. It is further agreed that when said sum of dollars shall have been fully paid in the manner aforesaid the absolute legal title to all of said property shall then, and not until then, vest in the said second party. No verDat contract or agreement contrary to any of the terms and con- ditions of the foregoing contract has been made. This contract is ' executed in dupticate, and each party has one. In witness whbkeof, the parties hereto have hereunto set their hands the day and year first above written. State of New York, ' City and County of L S3. . On this day of , 19 , before me, the subscriber, personally appeared A. B. and C. D., to me personally known to be the same persons described in and who executed the foregoing instrument, and they severally duly acknowledged that they executed the same. No. 17. CONTRACT OF CONDITIONAL SALE IN THE FORM OF A LEASE. This Indentuee Witnesseth, That I have this day leased and received of , the personal property hereinafter described, which is valued at dollars, and it and every part thereof is in good order and condition. For the use of said personal property, I this day pay the sum of dollars, and I do hereby agree to pay rent therefor hereafter, at the rate of dollars per month, and I agree to make such monthly payments to said on the day of each and every month hereafter, with the understanding that when I shall have fully and promptly paid rent for said property amounting to the sum of dollars, the said personal property, and every part thereof, shall become and be my property, and the absolute legal title thereto shall then, and not until then, vest in me; but in case of default in any of the payments agreed to be made as aforesaid, I hereby agree to return all of said property to said ; and in sucii case the said shall have full power, and I do hereby authorize the said , or his agent or agents, to enter upon my premises and to search for the said property thereon, and in and through the house and buiiamgs occupied by me, and to remove said property therefrom with or without process of law, and to forfeit all money paid thereon; and I do hereby agree that such money paid shall be retained by said as and for the rental value of such property while occupied by me, and up to the time of such default and removal of said property from my premises. FoEMS. 261 And I further agree not to remove the said property, or any part thereof, from the premises named below as my residence, without the written permission of the said , I have read this contract and imderstand its terms and conditions, and I have made no verbal agreement or contract contrary to any of the terms and conditions as expressed in the foregoing instrument. The following is a description of the personal prop- erty leased as aforesaid: {Here insert description.) This contract is executed in duplicate; and each party has one. In witness whebeof, I have hereunto set my hand this day of , one thousand nine himdred and Residence, No. Street, City of Occupation, State op New Yobk, City and County IK, 'j of li On this day of ■ , 19 , before me, the sub- scriber, personally appeared , to me personally known to be the same person described in and who executed the foregoing instrument, and he duly acknowledged that he executed the same. No. 18. NOTICE OF SALE BY CONl)ITIONAL VENDOR RETAKING PROPERTY. To and all others concerned: You WILL PLEASE TAKE NOTICE, that On the day of , at the in the of , county, N. Y., at o'clock in the noon, unless the amounts hereinafter specified are sooner paid, {Here insert description of the prop- erty.) purchased by , of , imder »■ contract of conditional sale in terms as follows: {Set out tKe contract in full or fully state its terms.) will be sold at public auction to the highest bidder. That there is now due and unpaid upon said contract the sum of dollars and that the expenses of the storage of said property amount to dollars, Conditional Vendor. INDEX INDEX [References are to pages.] A ABSENCE of officer, filing of mortgage 75 ACCEPTANCE of goods conditionally sold, recovery by vendor of purchase price when vendee refuses to accept goods 239 ACKNOWIiEDGMENT of mortgages of vessels 193 ACT OF BANKBUFTCT See Bankeuptcpy. ACTION by mortgagee, for possession of property 145 parties 145 demand 146 judgment 146 by mortgagee to recover debt 146 upon mortgage 147 by mortgagee for conversion of property 148 liability of purchaser from mortgagor 149 liability of agent of mortgagor 149 liability of officer 150 necessity of demand 151 damages 151 by mortgagee for deficiency 160 by mortgagee in equity to determine priority 161 to foreclose mortgage 156 parties 157 defenses 158 counterclaim 158 statutory provisions 159 jurisdiction of courts 159 warrant to seize chattel 159 judgment 159 action in inferior court 160 [265] 266 Index. [References are to pages.] ACTION — (Continued) . to set aside discharge of mortgage procured by fraud 184 to enforce mortgage, jurisdiction of Municipal Court of New York. . . 162 by mortgagor, action at law 128 against mortgagee 128 damages 130 of redemption, necessity of tender of debt 132 scope of relief in 132 by creditor, in aid of execution 167 to redeem mortgage upon debtor's property 168 to set aside alienation of corporate property 168 by conditional vendor to recover property 233 necessity of demand 234 by conditional vendor to recover deficiency 237 by conditional vendor for conversion 237 necessity of demand 238 damages 238 jurisdiction of Municipal Court of New York City 238 by conditional vendor, to recover purchase price 239 when vendee refuses to accept goods 239 against guarantor of contract 240 contract payable in installments 240 by conditional vendor to foreclose lien 240 by conditional vendor to recover damages for false representations inducing sale 241 by conditional vendee to recover payments 245 waiver of right to recover 246 jurisdiction of Municipal Court 246 by conditional vendee, replevin 244 ADHINISTBATOB of mortgagor, right to attack mortgage for fraud 124 ADMIBAI.TT jurisdiction of mortgages on vessels 192 ADVANCES of funds for vessel in foreign port, priority of lien for 19^ form of mortgage for future 251 See also Ftjttteb Advances. AFFIDAVIT form of, for warrant to seize chattel in action of foreclosure 255 AFTEB-ACQ1TIBED PBOFERTT as a subject of a mortgage 28 Index. 267 [References are to pages.] AGENT of mortgagor, liability to mortgagee lor conversion of property 149 AGREEMENT TO GIVE MORTGAGE distinguished from mortgage 19 ALTERATION of mortgage 56 of contract of conditional sale 216 ANIMAI.S See Bailee or Animals. ANNEXATION of mortgaged chattels to realty, form of mortgage 252 of conditionally sold property to realty 219 of conditionally sold property to realty, filing of contract 221 place of filing 225 endorsement, entry, etc 225 right of mortgagee or vendee of realty to attach contract when not filed 230 ANTECEDENT DEBT subsequent purchaser or mortgagee on account of, cannot attach prior, mortgage not refiled 100 APARTMENT HOTEI. KEEPER lien of, upon mortgaged chattels 169 ARTISAN priority of lien of, upon mortgaged chattels 169 ASSIGNEE of subsequent mortgage, right to attack prior unfiled mortgage 85 of mortgagor, right to attack mortgage for fraud 124 ASSIGNEE FOR CREDITORS right of, to attack unfiled mortgage upon property assigned 86 transfer of mortgaged property to, effect of upon right to attack unfiled mortgage 90 of mortgagor, right to attack mortgage for fraud 125 ASSIGNMENT held a mortgage 7 of insurance policy, held a mortgage 7 of contract may be shown to be mortgage 10 of mortgage 176 assignment of debt 177 subject to equities 177 268 Index. [References are to pages.] ASSIGNMENT— (Continued). of mortgage to mortgagor as a discharge of the mortgage 181 of mortgage, form 257 of claim for conversion of mortgaged property 176 of prior mortgage, second mortgagee may compel 174 ASSIGNMENT FOB CREDITORS See Genebal Assignment; Assignee roB Ceeditohs. ASSIGNMENT IN TRUST distinguished from mortgage 20 ASSOCIATION See Joint Stock Association. ATTACHMENT See Pbocess. ATTCTIONEER selling mortgaged property, liability for conversion 149 automobii.es See Baii£e of Motob Vehickbs. B BAII.EE OF ANIMAI.S lien of, upon mortgaged property 170 baii.ee of motor vehici.es lien of, upon mortgaged chattels 171 BANKRUPTCY mortgages in 20O mortgage as act of bankruptcy 201 mortgage as preference 202 fraudulent mortgage 206 sale of mortgaged property 20S right of trustee or receiver to attack claim upon the bankrupt's property mortgage not filed 87, 208 not refiled 103, 208 fraudulent mortgage 125, 206 eontract of conditional sale , 232 Index. 269 [References are to pages.] BII.I. OF LADING as a subject of a mortgage 27 delivery of, in lieu of filing as a mortgage 65 BILI. OF SALE filing of mortgage in form of V3 of vessel shown by parol to be a, mortgage 197 See also Sale. BOARDING HOUSE KEEPER lien of, upon mortgaged chattels 169 right of, to attack prior unfiled mortgage 86 BOARDING STABLE See Bailee or Animals. BOATS See Vessels. BOND delivery of, as pledge or mortgage 19 for seizure of mortgaged chattel in action of foreclosure, form 254 See also Bottomey Bond; Respondentia Bond. BOTTOMRY BOND nature of 190 distinguished from chattel mortgage 190 c CANAL BOAT mortgage of, filing of 58 place of filing 72 necessity of refiling 94 need not be filed according to Federal statute 195 CANCELLATION of prior mortgage, second mortgagee may compel 174 CERTIFICATE of payment of purchase price of property conditionally sold 227 See LiQuoE Tax Cebtifioate. CHAIRS theatre chaira^ as subjects of a mortgage 36 270 Index. [References are to pages.] CHAMBERLAIN ot city or village, surplus arising out of sale of conditionally sold property may be deposited with 236 CHANGE of possession of mortgaged property in lieu of refiling mortgage 103 CHATTELS See Sdbjects op Mobtgage; Peopeett. CHATTEL MOBTGAGE definition of 2 different from real estate mortgage 2 incidental to debt 2 distinguished from other contracts 6-24 in general .• 6 sale 7 conditional sale 11 pledge 16 agreement to give mortgage 19 general assignment 20 assignment in trust 20 lease reserving lien 21 bottomry bond 190 forms of 249 containing clauses for insurance, prohibition of removal or levy. 250 for future advances 251 on property annexed to realty 252 CHATTELS REAL as the subject of a chattel mortgage 37 CHOSE IN ACTION as a subject of a mortgage 25 delivery of as pledge or mortgage 19 mortgage of, need not be filed 61 COLLECTOR OF CUSTOMS recording of mortgages of vessels in office of 192 COMMON LA'W doctrine of conditional sales 217 COMPLAINT in action to foreclose mortgage, form of 253 COMPOUNDING CRIME validity of mortgage given to compound crime 55 Index. 271 [References are to pages.] CONDITIONAL SALE distinguished from chattel mortgage 11 nature of 211 interest of vendor 212 interest of vendee 213 distinguished from chattel mortgage s. 11 contract of sale and return 214 forfeiture upon default by vendee 215 possession of property 215 verbal contract of 216 alteration of contract 216 fraudulent contract ; 217 common-law doctrine of conditional sales 217 concerning property to be annexed to realty 219 filing, refiling, discharge from record 221 statute 221 purpose and construction of statute 222 necessity of filing 222 contract for goods to be subsequently delivered 223 place of filing 222 indorsement 225 entry 225 refiling 225 discharge from record 225 of contract for sale of railroad equipment, etc 227 who may attack for failure to file or refile . . , 228 parties to contract 228 purchaser 228 mortgagee 229 pledgee 230 mortgagee or vendee of realty to which property is annexed. 230 creditor 231 trustee in bankruptcy 232 rights and remedies of vendor 233 recovery and sale of property 233 recovery in general 233 necessity of sale upon recovery 235 notice of sale 236 disposition of proceeds of sale 236 action for deficiency 237 action for conversion 237 necessity of demand 238 damages 238 jurisdiction of Municipal Court of New York City 238 272 Index. [References are to pages.] CONDITIONAI. SALTi— {Gontimied). action for purchase price 239 when vendee refuses to accept goods 239 against guarantor of contract 240 contract payable in installments 240 action to foreclose lien 240 action for damages for false representations inducing sale 241 election of remedies 241 rights and remedies of vendee 244 recovery of payments 245 waiver of right to recover payments 246 form of 259 in form of lease 260 CONDITIONAI. VENDEE interest of, in property conditionally sold 213 forfeiture or default by 215 cannot attack contract for failure to file or refile 228 rights and remedies of 244 action of replevin 244 recovery of payments 245 waiver of right to recover payments 246 recovery of damages when vendor had no title 244 See also Conditionai, Sale; Coitoitionai, Vendob. CONDITIONAI. VENDOR interest of, in property conditionally sold 212 cannot attack contract for failure to file or refile 228 rights and remedies of 233 recovery and sale of property 233 recovery in general 233 necessity of sale upon recovery 235 notice of sale 236 disposition of proceeds of sale 236 action for deficiency 237 action for conversion 237 necessity of demand 238 damages 238 jurisdiction of Municipal Court of New York City 238 action for purchase price 239 when vendee refuses to accept goods 239 against guarantor of contract 240 contract payable in installments 240 action to foreclose lien 240 Index. 273 [References are to pages.] CONDITION AI. VENDOR — ( Gontirmed ) . action for damages for false representations inducing sale 241 election of remedies 241 See Conditional Saie; Conditionai, Vendiss. CONFLICT OF LAW^S as to validity of mortgage 53 CONFUSION OF GOODS as affecting validity of mortgage upon the goods 56 CONSENTS of stockholders for execution of corporate mortgage 44 CONSIDERATION of mortgage 47 of mortgage, as affecting its fraudulent character 122 CONSTABLE liability for levying upon mortgaged property 150 CONSTITUTIONAL LAW federal statute for recording mortgages of vessels 194 CONSTRUCTION of statute relating to filing mortgages 60 of statute relative to refiling mortgages 93 of statute for filing contracts of conditional sale 222 of bill of sale as a mortgage 10 CONSTRUCTIVE POSSESSION of mortgaged property, in lieu of filing 64 CONTRACT as a subject of a mortgage 26 assignment of, may be shown to be a mortgage 10 CONVERSION of mortgaged property, action by mortgagee for 148 liability of purchaser from mortgagor 149 liability of agent of mortgagor 149 liability of officer 150 necessity of demand 151 damages 151 Tight of subsequent mortgagee to maintain action of 173 18 2T4 Index. [References are to pages.] CONVERSION— {Continued}. action by conditional vendor for 237 necessity of demand 238 damages , . 238 jurisdiction of Municipal Court of New York City 238 See also Action; Tobtfeasoe. COPYRIGHT as a subject of a mortgage 26 CORPORATE MORTGAGES statute 42 consents 44 who may attack for failure to comply with statute 44 operating as preference 45 by railroad 45 filing of 47, 62 necessity of refiling 93 right of receiver of, to attack unfiled mortgage of corporate property. 87 action by creditor of, to set aside mortgage of corporate property. . . 168 CO-SUBETT See SuBETT. C017NTERCI.AIM in action to foreclose mortgage 158 COUNTY CLERK See Officees. COURTS jurisdiction of action to foreclose mortgage 159 action to foreclose mortgage in inferior 160 See also Municipal Court of New Yobk. CREDITORS right to levy upon mortgaged property 163 other remedies of 167 action in equity in aid of execution 167 right to redeem mortgage upon debtor's property 168 of mortgagor, right to attack mortgage not refiled 97 right to attack mortgage not filed 78 with invalid execution 81 with knowledge of mortgage 81 of mortgagor, right to attack fraudulent mortgage 123 Index. 275 [References are to pages.] CREDITORS — ( Continued) . of tenant may attack lease reserving lien to landlord, where lease is not filed 21, 23 of conditional vendee, right to attack unfiled contract of conditional sale 231 validity of mortgage operating as equitable lien as against 35 See also Assignee fok Cbeditobs. CRIME transfer of mortgaged property by mortgagor 127 validity of mortgage given to compound 55 CROPS aa a subject of a mortgage 32 CUSTOMS See CoiXECTOB or CtrsTOMS. D DAMAGES recoverable by mortgagor for conversion of mortgaged property. ... 130 in action by mortgagee for conversion of mortgaged property 151 in action by conditional vendor for conversion 238 DANGER CLAUSE rights of mortgagee under 142 DEBT secured by a chattel mortgage 47 inaccurate statement of 49 parol evidence to explain 49 excessive statement of indebtedness in mortgage, as constituting fraud 121 mortgage is incidental to 2 purchaser or mortgagee on account of antecedent cannot attach prior mortgage not refiled 100 discharge of, by retention of mortgaged property without foreclosure. 144 action by mortgagee to recover 146 upon mortgage 147 assignment of, as transferring mortgage 177 payment of, discharges mortgage 178 tender of, as discharge of mortgage -. 182 276 Index. [References are to pages.] SEFAULT when mortgagor deemed in , 135 mortgage to indemnify surety 136 failure to pay installment 136 when process against mortgaged property is permitted 137 when property is removed without mortgagee's consent 138 extension of time 138 waiver of default 139 in payment by conditional vendee 215 DEFENSES in action to foreclose mortgage 158 DEFICIENCY action by mortgagee to recover 160 action by conditional vendor to recover 237 DEFINITION of chattel mortgage i 2 DELIVERY of mortgage 55 DEMAND necessity of, in action by mortgagee to replevin property 146 necessity of, in action for conversion of mortgaged chattels 151 in action by conditional vendor for conversion 238 in action by conditional vendor to recover property 234 DERIVATION of term " mortgage " 1 DESCRIPTION of mortgaged property 49 indefinite 50 schedule 52 parol evidence to explain 52 DISCHARGE of mortgage 178 by payment 178 by taking other security 180 by transfer of property to mortgagee 181 by assignment of mortgage to mortgagor 181 by tender before default 182 by tender after default 182 by mortgagee's retention of property 183 Index. 277 [References are to pages.] DISCHARGE — (Continued). by disposal of property by mortgagor 183 release of property from lien of mortgage 183 discharge of record 184 procured by fraud, action to set aside 184 of debt by retention of mortgaged property without foreclosure 144 ' of lien upon stock of goods 188 from record of contracts of conditional sale 225 DISPOSAI. See Saij:. E EARNINGS of mariner, as a subject of a mortgage 32 of mortgaged vessel, right to 196 ELECTION of remedies by conditional vendor 241 ENTRY of mortgage in books of filing officer 74 of contracts of conditional sale 225 EQUIPMENT of railroad, filing contract of conditional sale of 227 EQUITABLE LIEN operation of mort,gage upon non-existing or after-acquired property as 33 foreclosure of 34 EQUITIES assignment of mortgage as afi^ecting 177 EQUITY action in, to determine priority of mortgages 161 action in, by creditor in aid of execution Iu7 EQUITY OF REDEMPTION mortgagor's right of 130 is assignable 130 how lost ' 131 waiver of 131 See also Mobtoaoob. 278 Index. [References are to pages.] EVIDENCE of mortgage 185 See also Paboi. Evidence. EXCESSIVE statement of indebtedness in mortgage as constituting fraud 121 sale of mortgaged property 155 EXCISE See LiQTJOB Tax Oebtdicatk. EXECTTTIOir levy upon mortgaged property 163 See also Pbocess. EXECUTION SATE See Judicial Saue. EXECUTOR of mortgagor, right to attack mortgage for fraud 124 EXEMPT PROPERTY mortgage of, right of creditor to attack when mortgage not filed. ... 79 EXTENSION of time of payment of mortgage 138 F FAII.URE to file mortgage, effect of failure of 77 FARM LEASE form, containing mortgage clause 252 FEES for filing mortgages 76 for searching for papers 76 for filing and refiling contracts of conditional sale 226 FELONY validity of mortgage given to compound 55 FILING of mortgages — statutes requiring filing , , 58 mortgages on canal boats 58 purpose of statute 59 construction of statute 60 Index. 279 [References are to pages.] FILING — ( Continued ) . necessity of filing 60 inatruments not operating aa mortgage 60 inatruments upon property not "goods and chattels" 61 mortgage of real and personal property 62 corporate mof tgagea 62 ehange of posaession in lieu of filing 63 conatruetive possession , 64 symbolic possession 65 delivery of part of mortgaged chattels 66 time of filing 66 priority of mortgages filed at the same time 69 place of filing 69 statute 69 construction of statute 70 effect of erroneous statement of residence of mortgagor 71 partnership mortgage 72 mortgage by joint stock association 72 mortgage of vessel 72 mortgage of canal boat 72 mortgage of liquor tax certificate 73 filing of portion of contract 73 the acts of filing and entry 74 statute 74 absence of officer 73 vacancy in office 75 omission of officer 73 payment of fees 76 ' removal of mortgage 76 effect of failure to file 77 as to third parties 77 as between the parties 77 who may attack mortgage for failure to file 77 creditor in general <- 78 creditor with invalid execution 81 creditor with knowledge of mortgage ^ 81 purchaser 81 mortgagee 81 purchaser or mortgagee from third party 82 purchaser or mortgagee with notice of unfiled mortgage. . . 82 purchaser or mortgagee on account of precedent debt 83 purchaaer at judicial sale 85 assignee of aubsequent mortgagee 85 lienors 85 280 Index. [References are to pages.] FILING — {Continued). assignee for creditors 86 receiver in supplementary proceedings 86 receiver of corporation 87 trustee or receiver in bankruptcy 87, 208 effect of transfer of chattels 88 to mortgagee 88 to bona fide purchaser 89 to assignee for creditors 90 of mortgage of vessel 192 statute 192 construction of statute ; 194 vessels to which statute la applicable 195 priority of recorded mortgage 195 of contracts of conditional sale 221 of property to be annexed to realty 221 of railroad equipment or rolling stock 227 necessity of filing 222 contract for goods to be subsequently delivered 223 place of filing 223 who may attack contract for failure 228 parties to contract 228 purchaser of property 228 mortgagee , 229 pledgee 230 mortgagee or vendee of realty 230 creditor 23 1 trustee in bankruptcy 232 of lease reserving lien 21 of verbal mortgage 40 of verbal contract of conditional sale 216 FIXTTTBES as subjects of a mortgage 36 FOBECLOSUBE of mortgage — by action 156 parties 157 defenses 158 counterclaim 158 by action, statutory provisions for 159 jurisdiction of courts 159 warrant to seize chattel 159 judgment 159 action in inferior court 160 Index. 281 [References are to pages.] FORECLOSURE — {Continued). by Bale of property 153 requirement of good faith 154 right of mortgagee to purchase 154 excessive sale 155 . surplus 15") warranty of title 156 of mortgage, forms 253 complaint 253 bond for seizure of property 254 affidavit for seizure 255 warrant for seizure 256 of lien of contract of conditional sale 240 retention of property by mortgagee without 144 satisfaction of debt thereby 144 FORFEIT1TBE by conditional vendee 215 FORM of mortgage 39 FORMS of chattel mortgage, common form 249 containing clauses for insurance, prohibition of removal or levy, etc 250 for future advances 251 on property annexed to realty 252 farm lease containing mortgage clause 252 power of attorney to foreclose mortgage 253 action to foreclose — complaint 253 bond for seizure of chattel 254 affidavit for warrant for seizure of chattel 255 warrant for seizure of chattel 256 assignment of mortgage 257 satisfaction of mortgage 257 statement of mortgagee on renewal of mortgage 258 statement of mortgagee on refiling copy of mortgage 258 notice of sale under mortgage 259 contract of conditional sale 259 in form of a lease 260 notice of sale by conditional vendor upcMi retaking property 261 FRANCHISE of corporation, mortgage of 44 282 Index. [References are to pages.] FRAUD retention of possession of property by mortgagor 106 reservation by mortgagor of disposal of property 108 sale for benefit of mortgagee 112 effect of failure to deliver proceeds to mortgagee 113 disposal of stock of goods and substitution of others 114 sales not made pursuant to agreement 115 sales on credit 116 question for court or jury 117 effect of transfer of property to mortgagee 117 fraudulent trust 118 fraudulent mortgage 119 between husband and wife 121 excessive statement of indebtedness 121 effect of consideration 122 mortgage fraudulent in part 123 who may attack fraudulent mortgage 123 creditors 123 executor 124 administrator 124 assignee 124 trustee 124 property obtained by, as a subject of a mortgage 27 in failure of mortgagor to disclose mortgage when transferring mort- gaged property 127 as a defense to action to foreclose mortgage 158 action by mortgagee to set aside discharge procured by 184 fraudulent mortgage in bankruptcy proceedings 206 right of trustee to attack 208 in contract of conditional sale 217 action by conditional vendor to recover damages for false representa- tions inducing sale 241 FRAUDS, STATUTE OF as affecting verbal mortgage 40 contract of conditional sale 216 FREIGHT See Eabninqs. FUTURE ADVANCES mortgage given to secure 47 parol evidence to show that mortgage was given to secure 48 form of mortgage for 251 Index. 283 [References are to pages.] FUTURE ESTATE aa the subject of a mortgage 37 G GARAGE See Bailee of Motob Vehicles. GENERAI. ASSIGNMENT distinguished from mortgage 28 See also Assignee fob Ceeditoes. GOOD FAITH requirement of in foreclosure of mortgage by sale of property 154 GOODS See Stock of Goods. GRASS growing may be subject of a chattel mortgage 32 GUARANTOR of contract of conditional sale, liability for purchase price 240 See also Subety. H HAT as a subject of a mortgage 32 HOP FOI.es as subjects of a mortgage 36 HOTEI. KEEPER See Innkeefeb. HUSBAND AND "OriFE when mortgages between are fraudulent 121 I INACCURATE statement of debt 4t INDEBTEDNESS See Debt. 284: Index. [References are to pages.] INDEFINITE description of mortgaged property 50 INDEXING of mortgage when filed 74, 7(5 of records of mortgages of vessels 103 INDORSEIffiENT of mortgage upon filing 70 of contracts of conditional sale 225 INFANCY infant as party to mortgage 41 as defense in action by conditional vendor to recover property 235 INFERIOR COURTS action to foreclose mortgage in 160 INNKEEPER lien of, upon mortgaged chattels 169 right of, to attack prior unfiled mortgage 86 INSTALLMENT ■when failure to pay, renders niortga'^nr in /.,"•■ 136 conditional sale p:iyal)le in, recovery of 240 INSURANCE assignment of policy, held a mortgage 7, 10 policy as a sub'ect of a mortmigo 25 mortgage of life insuvonce policy, receipt by mortgagee of amount of. . 129 as a subject of a mortgage 25 mortgagor has insurable interest in property 4 premiums upon vessel, priority of lien for 196 form of chattel mortgage containing clause for insurance of prop- erty 250 INTEREST of mortgagee, statement of, upon refiling 95 J JOINT MORTGAGEES rights of 42 JOINT OWNERS of property, mortgage by one of 42 Index. 285 [References are to pages.] JOINT STOCK ASSOCIATION mortgage by, place of filing of 72 JUDGMENT in action to foreclose mortgage 159 in action of replevin by mortgagee 146 upon debt, recovery of by mortgagee does not discharge mortgage. ... 180 JUDICIAL SAI.E purchaser of mortgaged property at, right of to attack unfiled mortgage 85 right to attack mortgage not refiled 101 JURISDICTION admiralty, of mortgages on vessels 192 of action to foreclose mortgage 159 of Municipal Court of New York in actions to enforce mortgage... 162 of Municipal Court of New York. of action by conditional vendor for conversion 238 to recover installments 240 of Municipal Court of New York of action by conditional vendee to recover payments 246 L I.ANDI.OBD AND TENANT lease reserving lien distinguished from mortgage 21 form of lease containing mortgage clause 252 See also Lease. LEASE assignment of, may be shown to be a mortgage 10 contract in form of, may be a conditional sale 211 as a subject of a mortgage 26 reserving lien, distinguished from mortgage 21 form containing mortgage clause 252 See also Landloed and Tennant. LEASEHOLD INTERESTS mortgage of, need not be filed 61 LEGAL POSSESSION of mortgaged property, in lieu of filing 64 LEVY upon mortgaged property 163 LICE'ii'SE See LiQtroB Tax Ceetipicate. 286 Iij^DEx. [References are to pages.] LIEN See Equitable Lien; Mabitime Liens. I.IENOB of mortgaged property, right of to attack prior unfiled mortgage .... 85 See also Abtisan; Mechanic; Innkeepeb; Boarding House Keepee; Bailee of Animals; Bailee of Motob Vehicles; Wabehouseman. I.IENS UPON MERCHANDISE See Stock of Goods. I.IQVOR TAX CERTIFICATE as a subject of a mortgage 26 filing of mortgage of 61, 73 place of filing 73 rrVERT STABI.E See Bailee of Animals. LODGING HOUSE KEEPER lien of, upon mortgaged chattels. . ., 169 LOOMS ' in woolen factory, as subjects of a. mortgage 36 M MARINER earnings of, as n subject of a mortgage 32 MARITIME CONTRACT bottomry bond is 192 mortgage of vessel is not 192 IftARITIME LIENS priority over mortgage of vessel 195 MECHANIC priority of lien of, upon mortgaged chattels 169 MECHANIC'S LIEN effect of filing, by conditional vendor of property annexed to realty 220 MERCHANDISE See Stock of Goods. MERGER See DiscHABGE. MISTAKE in name of mortgagee in mortgage ^j Index. 287 , [References are to pages.] MORTGAGE derivation of term " mortgage " 1 as the subject of a chattel mortgage 26 proof of 185 on real estate to which property conditionally sold is annexed. .219, 220 MORTGAGED PROPERTY See Subjects of Mortgage; Pkopebty. MORTGAGEE title to property 3 before default .3 after default 4 joint 42 cannot attack mortgage for failure to iile 77 mortgage not refiled is valid as against 97 statement of interest of, upon refiling mortgage 95 transfer of mortgaged property as affecting fraudulent mortgage.... 117 transfer of mortgaged property to, effect of upon right to attack unfiled mortgage 88 subsequent, right of to attack prior unfiled mortgage 81 from third party 82 with notice of prior mortgage 82 on account of precedent debt 83 assignee of subsequent mortgage 85 subsequent, mortgage not refiled is void as against 97 subsequent, right to attack prior mortgage not refiled , (19 mortgagee within year 99 mortgagee from third party 99 mortgagee for antecedent debt lOO mortgagee with actual notice ., lOO subsequent, rights of 173 may maintain action of conversion 173 may seize and sell property 174 may attack prior mortgage 174 may compel assignment or cancellation of prior mortgage 174 of property conditionally sold, right to attack imfiled contract of conditional sale 229 discharge of mortgage by 178 to sign and acknowledge certificate of discharge of mortgage 184 of vessel, has legal title thereto 189 has right to possession 189 of vessel, liability for supplies, etc 197 right to earnings 198 288 Index. [References are to pages.] MORTGAGEE — (Cmitinued). rights and remedies of 134 when mortgagor deemed in default 135 mortgage to indemnify surety 136 failure to pay installment 136 when process against mortgaged property is permitted 137 when property is removed without mortgagee's consent. . . . 138 extension of time 138 waiver of default 139 possession of property 140 under the danger clause 142 retention of property without foreclosure 144 satisfaction of debt thereby 144 action by mortgagee for possession 145 parties 145 demand '. 146 judgment 146 action to recover debt 146 action upon mortgage to recover debt 147 action for conversion of chattels 148 liability of purchaser from mortgagor 149 liability of agent of mortgagor 149 liability of officer 150 necessity of demand 151 damages 151 foreclosure by sale of chattels 153 requirement of good faith 154 right of mortgagee to purchase 154 excessive sale 155 surplus 155 warranty of title 156 foreclosure by action 156 parties . i 157 defenses ' 158 counterclaim 158 statutory provisions for foreclosure by action 159 jurisdiction of courts 159 warrant to seize chattel 159 judgment 159 action in inferior court 160 action for deficiency 160 action in equity to determine priority 161 jurisdiction of Municipal Court of New York in actions to enforce mortgage 162 See also Paeties. Index. 289 [References are to pages.] HORTGAGOB title to property 3 before default 3 after default 4 property not owned by, as a subject of a mortgage 27 cannot attack mortgage for failure to file : 77 mortgage not refiled is valid as against 97 retention of possession of property ' by, as rendering mortgage fraudulent 106 reservation of disposal of property by, as rendering mortgage fraudulent 107 of vessel, liability for supplies, etc 197 right to earnings 198 when deemed in default — mortgage to indemnify surety 136 failure to pay installment 136 when process against mortgaged property is permitted 137 ■when property is removed without mortgagee's consent 138 extension of time 138 waiver of default 139 rights and remedies of 126 transfer of property 126 before default 126 after default 127 fraud in not disclosing mortgage 127 criminal liability 127 possession of property 128 action at law 128 against mortgagee 128 damages 130 equity of redemption 130 necessity of tender in action to redeem 132 scope of relief in action to redeem 133 See r.lso Paeties. MOTOR VEHICI.es See Baii,ee of Motor Vehicles. MXTNICIPAI. COURT OF NEW YORK jurisdiction of, in actions to enforce mortgage 162 jurisdiction of action by conditional vendor for conversion 238 jurisdiction of action to recover installments due on contract of conditional sale 240 jurisdiction of action by conditional vendee to recover payments .... 246 See also Coubts. 19 290 Index. [Refeirences are to pages.] N NOTE See Peomissobt Note. NOTICE of sale of mortgaged property by mortgagee 153 waiver of 154 of sale under chattel mortgage, form 259 of sale of property retaken by conditional vendor 236 of sale by conditional vendor retaking pioperty, form of 261 NUMBERING of mortgage when filed 74, 76 NITRSEBT STOCK as a subject of a mortgage 38 o OFFICER duty in reference to filing mortgages 74 indexing under names of parties 74 issuance of receipt 74 filing of mortgage in absence of 75 omission of, in filing mortgage 75 filing of mortgage when office is vacant 75 fees for filing instruments and other services 76 removal of mortgage 76 filing and indorsing mortgage on stock of goods 187 to discharge mortgage from record 1?4 indorsement and entry of contracts of conditional sale 225 fees 226 See also Cou^ctob of Customs; Shebiff; Constable. OMISSION of oficcer in properly filing and entering mortgage 75 OBAI. See VebbaIm Index. 291 [References are to pages.] P PAROIi EVIDENCE to show that mortgage was given to secure future advances 48 to pxplain debt secured by mortgage 49 to explain description of mortgaged property 52 as to showing time of payment of mortgage expressing no time of payment 135 to show that bill of sale of vessel is a mortgage 197 PART effect of mortgage fraudulent in part 123 PARTIES > title of, to mortgaged property 3 before default 3 after default 4 to mortgage 41 infants 41 partners 41 joint owners of property 42 joint mortgagees 42 oorporations 42 to mortgage, though not refiled, mortgage is valid as against 97 to action by mortgagee to recover property 145 to action to foreclose mortgage 157 PARTNERSHIP as a party to a mortgage 41 mortgage by, place of filing of _. 72 PASSIVE TRUST See Tbust. PATENT conveyance of, may be shown to be mortgage 10 PAYMENT of mortgage, when mortgagor deemed in default 135 extension of time of 138 of debt discharges mortgage 178 of fees in reference to mortgages 76 292 Index. [References are to pages.] PLACE of filing chattel mortgage 69 statute 69 construction of statute : 70 effect of erroneous statement of mortgagor's residence 71 partnership mortgage 72 mortgage by joint stock association 72 mortgage of vessel 72 mortgage of canal boat 72 of filing contracts of conditional sale 224 PLEDGE assignment of mortgage as 17 distinguished from chattel mortgage 16 right of pledgee to attack unfiled contract of conditional sale of property 230 POLICY OF INStTBANCE See iNSimANca POSSESSION of mortgaged property 128, 139 before default 139 after default 141 waiver of right to 142 right of mortgagee to take under danger clause 142 of property conditionally sold 215 of vessel, mortgagee has right of 189 of mortgaged property, change of, in lieu of filing 63 constructive change 64 symbolic possession 66 change of part 66 of mortgaged property, change of, in lieu of refiling mortgage 103 of mortgaged property, retention of by mortgagor as rendering mortgage fraudulent 106 of property, action by mortgagee for 145 parties 145 demand 146 judgment 146 POTATOES not planted, as subjects of a mortgage 33 POTENTIALLY EXISTING mortgage upon property potentially existing ^ SI Index. 293 [References are to pages.] POWER OF ATTORNEY to foreclose mortgage, form of 253 PREFERENCE mortgage as 202 corporate mortgage operating as 45 See also Bankbuptcy. PRINCIPAI. AND SURETY See SuBETY. PRIORITY of mortgages filed at the same time ft9 of mortgage of vessel 195 action in equity to determine 161 See FnJKO; Befilino; Mobtoagob; Mobtqagee. PRIVATE SAIiE foreclosure of mortgage by sale at 153 PROCESS mortgagor deemed in default by permitting process to be issued against property 137 PROMISSORY NOTE delivery of, may be pledge rather than mortgage 19 taking of, by mortgagee does not discharge mortgage 180 PROOF of mortgage 185 PROPERTY description of, in mortgage 49 levy upon mortgaged , 163 transfer of mortgaged, by mortgagor 126 possession of 128 process against mortgaged, when renders mortgagor in default 137 removal of mortgaged, without mortgagee's consent, when renders mortgagor in default 138 possession of mortgaged 139 before default 139 after default 141 waiver of right to 142 conditionally sold, possession of 215 action by mortgagee for possession of 145 retention by mortgagee of, without foreclosure 144 satisfaction of debt thereby 144 294 Index. [References are to pages.] PROPERTY— (Contintied). seizure of, in action to foreclose mortgage 159 action by mortgagee for conversion of 148 liability of purchaser from mortgagor i 149 liability of agent of mortgagor 149 liability of oflHcer 150 necessity of demand 151 damages 151 sale of mortgaged, in bankruptcy proceedings 209 PTTBLIC ADMINISTRATOR of mortgagor, may avoid mortgage for fraud 125 PURCHASE PRICE action by conditional vendor to recover 239 when vendee refuses to accept goods 239 against guarantor of contract 240 contract payable in installments 240 PURCHASER of mortgaged chattels, right to attack mortgage when not filed 81 from third party 82 with notice of prior mortgage 82 on account of precedent debt _. . 83 Tight to attack mortgage not refiled 97, 99 purchaser within year 99 purchaser from third party 99 purchaser for antecedent debt 100 purchaser with actual notice 100 purchaser at execution sale 101 of property conditionally sold, right to attack unfiled contract of sale , 228 of mortgaged chattels, effect of transfer to, upon right to attack unfiled mortgage 89 of property from mortgagor, liability for conversion 149 PURPOSE of statute for filing of contracts of conditional sale 222 R RAXLROAD mortgage executed by 45 rolling stock may be the subject of a chattel mortgage 37 filing of contracts of conditional sale of railroad equipment or roll- ing stock 227 Index. 295 [References are to pages.] REAI. ESTATE common-law doctrine of conditional sales of property annexed to. . . . 219 filing of mortgage of real and personal property 62 filing of contracts of conditional sale of property to be annexed to. . . 221 place of filing 225 indorsement, entry, etc 225 right of mortgagee or vendee of realty to attack contract when not filed 230 annexation of mortgaged chattels to, form of mortgage 252 REAI. ESTATE MORTGAGE difference of chattel mortgage from 2 RECEIPT for mortgage filed, duty of officer to give 74 to be given by officer filing notice of lien upon stock of goods 187 See also Wabbhousb Receipt. RECEIVER in bankruptcy, may attack unfiled mortgage upon the bankrupt's property 87 in supplementary proceedings, right of to attack unfiled mortgage upon debtor's property 86 mortgage not reflled 102 fraudulent mortgage 125 of corporation, right of, to attack unfiled mortgage of corporate property 87 mortgage not refiled 102 of corporation, equity of redemption in mortgaged personalty, passes to 130 RECORD discharge of mortgage from 184 RECORDING ^^ ^^^^_ RECOVERT by conditional vendor of property conditionally sold 233 necessity of sale upon 235 notice of sale 236 disposition of proceeds of sale 236 action for deficiency 237 REDEMPTION receiver in supplementary proceedings may maintain action of, 131 creditor of mortgagor may redeeem 168 necessity of tender in action of 132 scope of relief in action of, 132 See Equity of Redemption. 296 Index. [References are to pages.] ftEFrLING of mortgage — statute 91 object of statute 92b construction of statute 92b necessity of . . . 93 corporate mortgages 93 mortgages on canal boats 94 time of 94 statement of interest of mortgagee 95 form 258 by whom refiled 96 effect of failure to ; 97 as to creditors 97 subsequent purchasers 97 subsequent mortgagees 97 as between parties 97 ■who may attack for failure to refile 97 creditor 97 purchaser , 99 mortgagee 99 purchaser or mortgagee within year 90 purchaser or mortgagee from third party 90 purchaser or mortgagee for antecedent debt 100 purchaser or mortgagee with actual notice lOO purchaser at execution sale 101 tortfeasor paying judgment for conversion 101 receiver 102 trustee in bankruptcy 103, 208 change of possession in lieu of reiiling 103 new mortgage in lieu of refiling 105 of contract of conditional sale 225, 226 who may attack contract for failure 228 parties to contract 228 purchaser of property 228 mortgagee 229 pledgee 230 mortgagee or vendee of realty 230 creditor 231 trustee in bankruptcy 232 REGISTER „ „ See OrFiCEBS. RELEASE of property from lien of mortgage 183 Index. 297 [References are to pages.] REMEDIES election of, by conditional vendor 241 See also Mobtoagee; Mobtgaqob; Conditional Vendob; Con- ditional Vendee. REMOVAI. of mortgage from office where filed 76 of mortgaged property without mortgagee's consent, when renders mortgagor in default 138 BENEVriNG See Eefilinq. BEFAIBS to mortgaged property, priority of lien for 169 to mortgaged vessel, priority of lien for 196 to mortgaged vessel, liability of mortgagee for 197 REFI.EVIN action of, by mortgagee to recover possession of mortgaged property. 145 parties .^. 145 demand 146 judgment 146 action of, by conditional vendee 244 by conditional vendor to recover property 233 necessity of demand 234 sufficiency of demand 234 RESIDENCE of parties to mortgage, statement of in mortgage 41 of mortgagor, controls place of filing mortgage 70 effect of erroneous statement of residence 71 RESPONDENTIA BOND nature of 190 RETENTION of possession of property by mortgagor as rendering mortgage fraudulent 106 by mortgagee of mortgaged property, without foreclosure 144 satisfaction of debt thereby 144 for thirty days, of property retaken by conditional vendor 235 RETURN contract of sale and 214 BOI.I.ING STOCK may be the subject of a chattel mortgage 37 filing contract of conditional sale of 227 298 Index. [References are to pages.] s SALE distinguished from mortgage 7 construction of bill of sale as mortgage 10 right of mortgagor to sell property 126 before default 126 after default 127 criminal liability 127 reservation by mortgagor of disposal of property, as rendering mort- gage fraudulent 108 sale for benefit of mortgagee 112 effect of failure to deliver proceeds to mortgagee 113 disposal of stock of goods and substitution of others 114 sales not made pursuant to agreement 115 sales on credit 116 question for court or jury 117 effect of transfer of property to mortgagee 117 foreclosure of mortgage by 153 requirement of good faith 154 right of mortgagee to purchase 154 excessive sale 155 surplus 155 warranty of title 150 notice of, under mortgage, form 25!) of mortgaged property to mortgagee as discharge of mortgage 181 of mortgaged property in bankruptcy proceedings 209 by conditional vendor of property retaken 235 notice of sale 236 disposition of proceeds 236 by conditional vendor, upon retaking property, form of notiee 261 See also Conditional Sale; Conveesion. SATE AND CONDITIONAI. RESALE distinguished from mortgage 13 SALE AND RETURN contract of 214 SALT KETTLES as subjects of a mortgage 38 SATISFACTION of mortgage, form 2S7 See DiSCHARQK. Index. 299 [References are to pages.] SEAMEN'S WAGES priority of lien upon mortgaged vessel for 196 SECOND MORTGAGE as a discharge of the prior on same property 180 Son a]sf> MoRTRAOirir. SECOND MORTGAGEE See Mortgagee. SECURITY mortgage not discharged by taking other 180 SEIZURE of property, in action to foreclose mortgage 159 forms 254 bond 255 affidavit 255 warrant 256 SCHEDULE as a description of property mortgaged 52 SHERIFF liability of, for levying upon mortgaged property 150 SHIPS See Vessels. STATEMENT of debt in mortgage inaccurate 49 excessive, may constitute fraud 122 of interest of mortgagee, upon refiling mortgage 95 form 258 STATUTE OF FRAUDS as affecting verbal chattel mortgage 40 conditional sale 216 STEVEDORE priority of lien upon vessel for services of 196 STOCK OF GOODS mortgage of 186 mortgage of, may be fraudulent where mortgagor has power to sell property 108, 1 10 300 ISTDEX. [References are to pages.] STOCKHOLDERS consents of, for the execution of a corporate mortgage 44 STOCKS delivery of as pledge or mortgage 19 STORAGE of mortgaged property, priority of lien for 169 See also Wabehotjseman. SUBJECTS OF MORTGAGE choses in action; 25 liquor tax certificate 26 bill of lading 27 warehouse receipt 27 property not owned by mortgagor 27 property fraudulent obtained by mortgagor 27 after-acquired property 28 property not in existence 29 property potentially in existence 31 crops 31 operation as equitable lien 33 growing trees 36 fixtures 36 rolling stock 37 chattels real 37 future estate 37 stock of goods 37 vessels 38 StTBROGATION right of surety of mortgagor to be subrogated 168 SUBSEQUENT MORTGAGEE See MOBTOAGEE. SUBSEQUENT PURCHASER See Ptibchaseb. SUPERINTENDENT OF FUBI.IC 'WORKS fees for filing mortgages and other services 76 See also Canal Boats; Ofpicebs. SUPERVISOR of town, surplus arising out of sale of conditionally sold property may be deposited with 236 Index. 301 [References are to pages.] SUFPLEMENTABY PROCEEDINGS receiver in, righi of to attack mortgage upon debtor's property 86 SUPPLIES furnished vessel, priority of lien for 196 liability of mortgagee for 197 SURETY title of, taking mortgage as security 3 mortgage to indemnify, when mortgagor deemed in default 136 of mortgagor, mortgage given to secure 168 rights of co-surety 168 subrogation 168 See also Guasantob. S1TRPI.US upon sale by mortgagee of property 155 STMBOIilC POSSESSION of mortgaged property, in lieu of filing 65 T TENDER of debt, when necessary to support action to tedeem 132 of debt, as discharge of mortgage 182 before default 182 after default 182 THEATRE CHAIRS as subjects of a mortgage 36 TIME of filing mortgage 66 for refiling mortgages 94 TITLE of parties to mortgaged property 3 before default 3 after default 4 to mortgaged property, warranty of, upon sale by mortgagee 155 302 Index. [References are to pages.] TORTFEASOR paying judgment for conversion of mortgaged chattels, right to attack mortgage not reflled 101 TOWN CI^ERK See Officebs. TRANSFER right of mortgagor to transfer property 126 before default 126 after default 127 fraud in not disclosing mortgage 127 criminal liability 127 of mortgaged property to mortgagee as a discharge of mortgage 181 See also Sai£. TREASTTBER of city or vills^, surplus arising out of sale of oonditioBally gold property may be deposited mth '. 236 TREES growing, as subjects of a mortgage 36 TRUST mortgage operating as a fraudulent trust 113 TRUSTEE of mortgagor, right to attack mortgage for fraud 124 TRUSTEE IN BANKRUPTCY right to attack mortgage of bankrupt's property not filed 87, 208 not reflled 103, 208 fraudulent mortgage 125 right to attack unfiled contract of conditional sale executed by the bankrupt 232 See also Bankbuptct. u USURY usurious mortgage 54 Ijstdex. 303 [References are to pages.] V VACANCY in ofBce, how mortgage may be filed 75 VALIDITY of mortgage 53 by what law determined . . .' 53 usurious mortgage 54 mortgage to compound crime 55 delivery of mortgage 55 alteration of mortgage , 56 confusion of goods 56 VERBAI. mortgage 40 contract of conditional sale 216 VEBIFICAXION of notice of lien on stock of goods 187 VESSEL bill of sale of, may be construed a mortgage 10 mortgages of 189 distinguished from bottomry . . , 190 admiralty jurisdiction of 192 filing of 72, 192 statute 192 construction of statute 194 vessels to which statute is applicable 195 priority of mortgage 195 liability of parties for supplies, etc 197 right to earnings of vessel 198 w WAGES of seamen, priority of lien upon mortgaged vessel for 196 WAIVER of default in paymeit of mortgage 139 of right of possession of mortgaged property 142 of notice of sale of property in foreclosure of mortgage 154 by conditional vendor of condition 214 of forfeiture by conditional vendor 215 by conditional vendee of right to recover payments 24C 304 Index. [References are to pages.] WAREHOUSE RECEIPT as a subject of a mortgage 2T delivery of, in lieu of filing as a mortgage 65 WAREHOUSEMAN right of, to attack prior unfiled mortgage 86 lien of, upon mortgaged property 172 WARRANT to seize chattel in action to foreclose mortgage 159 form of _ 256 W^ARRANTT of title to property upon sale by mortgagee 156 of title by conditional vendor 2M WATCHMAN priority of lien upon vessel for services of 196 WIFE See Husband and WirB. WINE PLANTS as subjects of a mortgage , 32 [Total number of pages, 353]