Majority
p. 693William R. Willcox, as Trustee of the Elm Brewing Company, Respondent, v. Elenterio Perez and Jose Cabeza, Appellants. Second Department, November 28, 1906.
Headnote
Court — Municipal Court has jurisdiction of action for deficiency after foreclosure of chattel mortgage.An action for a deficiency on a chattel mortgage after foreclosure and sale is not an action on the mortgage. Thus, section 139 of the Municipal Court Act, prohibiting actions on chattel mortgages in that court, does not apply, and the court has jurisdiction.
The liability of a mortgagor for a deficiency on the foreclosure of a chattel mortgage arises as a matter of law h respective of the provisions of the mortgage.
Appeal by the defendants, Elenterio Perez and another, from a judgment of the Municipal Court of the City of Hew York.
Watson B. Robinson, for the appellants.
No appearance or brief for the respondent.
This is not an action on the chattel mortgage, but for a deficiency thereon after foreclosure and sale. Therefore section 139 of the Municipal Court Act,[1] that no action shall be brought in that court
* Laws of 1902, chap. 580.— [Rep.
p. 694
on a chattel mortgage “ made to secure the purchase price of chattels ” does not apply. It is true- that there is the usual provision in the mortgage that the mortgagor shall be liable for such deficiency, but that is not what makes him liable; he would be liable if there were no such provision ; his liability arises as matter of law out of the foreclosure, and that is the foundation of this action. The reason of the statute does not apply.
The judgment should be affirmed.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs. '