Bernheimer v. Prince — 58 N.Y.S. 392

Majority

p. 392

BERNHEIMER et al. v. PRINCE.

(City Court of New York,

General Term.

May 26, 1899.)

Headnote

Chattel Mortgages—Property Included by Mistake—Rights op Assignee.

Where certain chattels were included in a mortgage by mistake, and subsequently released by an agreement between the mortgagor and mortgagee, a subsequent assignee of the mortgage, who took it with knowledge of the agreement releasing the chattels, has no lien on them.

Appeal from trial term.

Action by Simon A. Bemheimer and another against Adolf Prince. There was a judgment for plaintiffs, and defendant appeals.

Affirmed.

Argued before FITZSIMOHS, O. J., and O’DWYER and SCHUCH-MA2Í, JJ.

Myers, Goldsmith & Bronner, for appellant.

Rose & Putzel for respondents.

The evidence clearly shows that the defendant, prior to the assignment of the chattel mortgage in question, had both actual and constructive knowledge of the fact that, by inadvertence, the chattels replevied herein were included in said mortgage, and that, by an agreement made subsequently to the execution and delivery of said mortgage, it was agreed in writing, between the mortgagor and mortgagee, that such was the fact, and accordingly that the said chattels should not be included in said mortgage. Such written agreement was duly filed; thus constructive notice of the facts therein recited was given defendant. Actual notice was also given him of said mistake. Thus it appears that, prior to the assignment to the defendant, he had full knowledge of the fact that his assignor had no right or title to the replevied goods, and that they were not covered by the mortgage. How, then, can he have an interest in them? The jury, in deciding against him, were compelled to do so by force of the evidence submitted to them.

Judgment affirmed, with costs. All concur.