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Brockman v. Buell

16 Daly (N.Y.) 90 Court N.Y.C.P. Decision date 1890-04-07 English

Delivered by Larremore, Ch. J.

Contents

Majority

p. 90
Mary Brockman, Respondent, against Henry Buell, Appellant.
(Decided April 7th, 1890.)

Headnote

A chattel mortgage given to secure a sum of money payable oné day after its datéis not a mortgage payable on demand, and the commencement of an action to recover possession of the mortgaged property is a sufficient demand.
In an action to recover possession of chattels mortgaged to plaintiff, consisting of ahorse valued at $200, and harness and blankets valued at $50, the evidence as to value was uncontradicted, but the court awarded judgment for $40 only. Held, that the court on appeal could not render judgment for the full value of the property, but must-reverse the judgment, and order a new trial.
Appeal from a judgment of the District Court in the City of New York for the Fifth Judicial District.
The facts are stated in the opinion.
L. H. Dickerson, for appellant.
B. Hoffman, for respondent.

This action was brought by the plaintiff to recover possession of one sorrel horse valued at $200 and one set of blankets and harness valued at $50. The answer is a general denial and demand for a bill of particulars. Issue was joined in the court below and judgment rendered on December 27th, 1889, in favor of the plaintiff for $40, with costs.

Plaintiff claims as mortgagee in possession of the property and brings suit for the return thereof or its value. The mortgage in question was given by the defendant to the plaintiff to secure the sum of $800 one dajr after the date thereof. In such case no demand was necessary, it not being a mortgage payable on demand, and the commencement of the action constituted such demand.

p. 91
As the court below found in favor of the plaintiff, thereby-establishing her right to recover the property or its value, it is somewhat difficult to understand the reason for the amount awarded. The testimony appears to be undisputed that the value of the horse was $200. Evidently the court did not take this into consideration in assessing the damages. We are asked to render a judgment in plaintiff’s favor for the value of the horse; this is not the province of an appellate court. The judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.