Hyperlawhypertext legal databasebeta Adler v. Atlas Brick Corp. 283 N.Y. 64

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Adler v. Atlas Brick Corp.

283 N.Y. 64 Court N.Y. Decision date 1940-04-26 English

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Majority

p. 64
Rose Adler, Appellant, v. Atlas Brick Corporation, Respondent. Greyhound Holding Company, Inc., Respondent.
Argued March 12, 1940;
decided April 26, 1940.
p. 66
Arthur B. Ewig and Samuel Sootin for appellant.
The inference to be drawn from the instruments in evidence is that the realty mortgages were not intended to cover chattels. (East River Sav. Bank v. 671 Prospect Ave. Holding Corp., 280 N. Y. 342 ; Manufacturers Trust Co. v. Peck-Schwartz Realty Corp., 277 N. Y. 283 ; Matter of Benevolent Elks, 69 Fed. Rep. [2d] 816.)
Robert D. Steefel, Sol M. Stroock, Peter I. B. Lavan, Milton Socolof and Sherwood B. Speed for respondents.
By reason of claimant’s $16,000 and $10,000 mortgages respectively, it acquired good title to the chattels in question prior to appellant’s judgment and levy of execution. (Cohen v. 1165 Fulton Ave. Corp., 251 N. Y. 24 ; Shelton Holding Corp. v. 150 E. 48th St. Corp., 264 N. Y. 339 ; President & Directors of Manhattan Co. v. Newberry, 265 N. Y. 588 ; President & Directors of Manhattan Co. v. Ellda Corp., 245 App. Div. 625 ; Prudential Ins. Co. v. Sanford Real Estate Corp., 246 App. Div. 567 ; Herold v. Cohrone
p. 67
Boat Co., 249 App. Div. 318 ; Matter of Downtown Athletic Club of New York City, Inc., 18 Fed. Supp. 712.) Appellant cannot urge in this court that the realty chattel mortgages were not intended to cover chattels. (East River Sav. Bank v. 671 Prospect Ave. Holding Corp., 280 N. Y. 342 ; Glaser v. Glaser, 276 N. Y. 296 ; Central Hanover Bank v. Eisner, 276 N. Y. 121 ; National Cash Register Co. v. Remington Arms Co., 242 N. Y. 99 .)

As between the parties, at least in the absence of intervening equities, whether or not a mortgage of real property also covers personal property, is a question of intent and that is a question of fact. In East River Savings Bank v. 671 Prospect Ave. Holding Corp. ( 280 N. Y. 342 ) we held that, since a question of fact was presented, summary judgment should not have been granted. Here there has been a trial on the merits and a finding that the parties intended that the mortgages cover personal property.

The order of the Appellate Division affirming the order of the Supreme Court of Columbia county dated May 2, 1938, and entered May 4,1938, should be affirmed, with costs.

Lehman, Ch. J., ■ Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed, etc.

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