De Luca v. Archer Mfg. Co. — 97 N.Y.S. 1026

Majority

p. 1026

DE LUCA v. ARCHER MFG. CO.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

1. Chattel Mortgages—Payment—Tender..

Where a chattel mortgagor voluntarily surrendered possession to the mortgagee,- taking a receipt reciting that the chattels were taken for Storage, he cbuld not obtain repossession without tendering the amount of the indebtedness in an equitable action.

p. 1027

2. Courts—Jurisdiction—Municipal Court of New York.

The Municipal Court of New York City has no jurisdiction of an equitable action by a mortgagor to regain possession of the chattels which he had voluntarily surrendered to the mortgagee.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Ferdinando Dé Luca against the Archer Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.

John T. Booth, for appellant.

This judgment cannot stand, and upon the admitted facts the plaintiff cannot recover in this action. ' In January, 1900, one Ferdinando Cinque gave to defendant a chattel mortgage covering some barber’s furniture as security for the payment of $776, in weekly installments of $4 each. This mortgage was duly refiled from year to year, so as to be kept alive. Cinque paid with more or less regularity, and in October, 1901, being then in arrear, sold the chattels to plaintiff under a bill of sale, which recited that the sale was made subject to the mortgage. Thereafter plaintiff made some payments upon the mortgage, and in February, 1903, he voluntarily surrendered possession of the chattels to defendant, taking a receipt, which recited that they came back for storage. Plaintiff continued to make payments until April, 1903, when he stopped paying. At that time he was about $220 in arrear, and he has never since paid or tendered anything on account of the amount due upon the mortgage. This action was begun more than two years thereafter. It is not disputed that the ■defendant lawfully obtained repossession of the chattels, and that there was at the time of such repossession a large amount due thereon. Under these circumstances, the plaintiff cannot obtain possession of them without paying or tendering the amount due thereon, and then, if at all, only in an equitable action, of which the Municipal Court has no jurisdiction.

The judgment must be reversed, with costs to appellant, and the ■complaint dismissed, with costs. All concur.