Ferraro v. Stramiello — 134 N.Y.S. 535

Majority

p. 535

FERRARO v. STRAMIELLO.

(Supreme Court, Appellate Term.

April 9, 1912.)

Headnote

Chattel Mortgages (.§ 169^[1] )—Property Subject—Chattel Mortgages.

Where a chattel mortgage merely covered goods “herein extant in said shop,” a removal by the mortgage and sale thereunder of all the goods in the shop on a later day is a conversion of so much of them as had been placed in the shop after the making of the mortgage.

[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 302-304; Dec. Dig. § 169.*]

Appeal from City Court of New York, Trial Term.

Action by Rocco Ferraro against Michael Stramiello. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

p. 536

Argued March term, 1912, before GUY, LEHMAN, and BI-JUR, JJ.

H. A. Rosenberg, for appellant.

Nicholas Selvaggi (Carl Thiele, of counsel), for respondent.

The action was brought to recover damages for conversion by defendant of certain merchandise belonging to the plaintiff. It transpired that plaintiff on October 4, 1910, had! given defendant a chattel mortgage covering goods and fixtures “herein extant in said shop. No. 383 Lafayette street.” On November 19th defendant, in alleged pursuance of the terms of the mortgage, removed all the fixtures and goods then in plaintiff’s said shop. Plaintiff showed that defendant removed and! sold many goods which had been' purchased by him and placed in the shop subsequent to October 4th.

As the mortgage did not undertake to cover after-acquired property, defendant was chargeable,with conversion of so much of the after-acquired property as he may have been sho;wn to have thus appropriated. Indeed, the facts as hereinabove recited were substantially conceded. Respondent apparently relies upon his right to apply the lien of the mortgage to after-acquired property, for which there is no warrant in law.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.