Wilcox v. Perez — 101 N.Y.S. 391

Majority

p. 391

WILCOX v. PEREZ et al.

(Supreme Court, Appellate Division, Second Department.

November 28, 1906.)

Headnote

Courts—Jurisdiction of Municipal Courts—Action fob Deficiency.

An action for a deficiency on a chattel mortgage, after foreclosure and sale, is not an action on the mortgage, jurisdiction of which is denied the Municipal Court by Laws 1902, p. 1533, c. 580, § 139; the liability arising as matter of law out of the foreclosure, and not out of the provision of the mortgage that the mortgagor shall be liable for the deficiency.

Appeal from Municipal Court of New York.

Action by William R. Wilcox, as trustee of the Elm Brewing Company, against Elenterio Perez and another. Erom a judgment refusing to dismiss the complaint for lack of jurisdiction, defendants appeal. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MIDLER, JJ.

Watson B. Robinson, for appellants.

This is not an action on the chattel mortgage, but for a deficiency thereon after foreclosure and sale. Therefore sec

p. 392

tíon 139 of the Municipal Court act (Laws 1902, p. 1533, c. 580), that no action shall be brought in that court 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 foundátion of this action. The reason of the statute does not apply.

The judgment should be affirmed.

Judgment of the Municipal Court affirmed, with costs. All concur.