told him that he took possession of the property under the mortgage, and told him not to let it go out of his hands without some authority from the law, the mortgage was invalid as to a judgment creditor of the mortgagor, under 3 Eev. St. (9th Ed.) p. 2013, providing for immediate delivery, followed by an actual and continued change of possession, or the filing of the mortgage in the town where the mortgagor resides.
Appeal from trial term, Delaware county.
Action by Luzerne A. Wild, as executor of Allen Wild, deceased, against William C. Porter. From a judgment dismissing the complaint, plaintiff appeals.
This action was brought to recover the possession of 15 cows and a mowing machine, or the v.alue thereof, in case possession could not be had, against the defendant, who, as sheriff, levied on and sold the property by virtue of an execution. The plaintiff claimed the property under a chattel mortgage executed to his testator by W. D. Ayiesworth on April 5, 1893, to secure $797, payable in one year from date. This mortgage was never filed in the town of Unadilla, in which town the mortgagor resided at the time of its execution, and the mortgaged property remained in the possession of the mortgagor. The defendant, as sheriff, justified his seizure of the property under an execution issued- on a judgment by confession in favor of George Cornell against William D. Ayiesworth, the mortgagor, in the supreme court, dated May 22, 1895, entered in Delaware county clerk’s office May 23, 1895, for the sum of $257.29. On about May 20, 1895, the plaintiff, through his attorneys, commenced proceedings for the foreclosure of his chattel mortgage, and on that day posted a notice of the sale of the mortgaged property for May 24, 1895, and one of the attorneys went upon the farm of the mortgagor, which was in possession of a tenant, who had hired of the mortgagor the farm and the dairy, including the cows in question. The attorney inquired of Bowman, the tenant, where the cattle were, and Bowman told him they were in the pasture. There were other cattle in the lot where these cows were. Bowman pointed out to the attorney the cows mentioned in the mortgage, and the attorney said to Bowman that he (the attorney) took possession of the cows by virtue of the chattel mortgage, and told Bowman not to let them go out of his hands without some authority from the law. Bowman said to him,—“Probably they wouldn’t go out of my possession, because I had hired them for a year.” The cows thereafter remained on the farm in the actual possession of Bowman, the tenant, and the levy on them was made by the sheriff on May 23, 1895, while they were in Bowman’s possession. On the sale by the plaintiff, under his mortgage, on May 24th, the cows and mowing machine were bid in by the plaintiff. They remained on the premises, and about a week thereafter were sold by the sheriff. At the close of the testimony, the court dismissed the complaint, and from the judgment entered thereon this appeal is taken.
Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ.Andrew G. Washbon, for appellant.
James R. Baumes, for respondent.
This action has been twice tried, and is here for the second time on Appeal. On the first trial the court held that the judgment by confession was void, and directed a verdict for the plaintiff for the value of the property as assessed by the jury. This court, on appeal, reversed the judgment for the plaintiff, and granted a new trial, holding that the judgment by confession was valid. Wild v. Porter, 22 App. Div. 179 , 47 N. Y. Supp. 1036 . That decision as to the sufficiency of the judgment by confession must be regarded as conclusive on this appeal.