Neer v. Oakley — 18 N.Y. St. Rep. 374

Majority

p. 374

Fanny O. Neer, Resp’t, v. Whitson Oakley et al., App’lts.

(City Court of Brooklyn, General Term,

Filed October 22, 1888.)

Headnote

1. Chattel mortgage—Validity of may be shown by evidence of the INDEBTEDNESS IT WAS GIVEN TO SECURE.

This action called in question the validity of a chattel mortgage made by one of the partners of a firm on behalf of the firm and reciting an indebtedness of the firm to the person named as mortgagee therein. Held, that it was not error to allow the plaintiff to show that the mortgage was given to secure the firm indebtedness to her. though made out in the name of another as mortgagee, by whom it was at once assigned to her.

2. Same—Partners may make chattel mortgage of firm chattels to

SECURE FIRM DEBTS-

Held, that one partner could in the firm name execute a mortgage of the firm’s chattels to secure a firm debt without consulting his co-partner.

Zimmerman & Jacobs, for resp’t; B. G. Hitchings, for app’lts.

This chattel mortgage made by Curtis per M. Neer, one of the partners, on part of the firm assets to one Van Pelt Palmer. The mortgage recites an indebtedness of the firm to Palmer of $490. The plaintiff, in support of the validity of the same, offered testimony, which was admitted against the objection of defendants, to show that Curti; & Neer were indebted to her and not to Palmer for mono / loaned by her to said firm, and that the mortgage

p. 375

was given to secure this indebtedness to her, and was made out in the name of Palmer, and immediately assigned to her under the direction and advice of counsel that it could not be made directly to her because her husband was one of the mortgagors.

The testimony in the case clearly warranted the submission to the jury of the question whether or not the said firm was indebted to plaintiff for money loaned. It was not error to allow the plaintiff to show that the mortgage was given to. secure the firm indebtedness to her, though made out in the name of Palmer, by whom it was at once assigned to her. McKinster v. Babcock, 26 N. Y., 378 ; Bainbridge v. Richmond, Sheriff, 17 Hun, 391 ; affirmed on opinion below, 78 N. Y., 618 . One partner can, in the firm name, execute a mortgage of the firm’s chattels to secure a firm debt without consulting his co-partner. Mabbett v. White, 12 N. Y., 442 ; Graser v. Stellwagen, 25 N. Y., 315 .

This disposes of the chief objections of the appellants. On the other exceptions no such error can be predicated as would justify the reversal of the judgment. The court properly and fairly submitted to the jury the controverted questions of fact raised on the issues in this action. We see no reason for disturbing the verdict of the jury upholding the validity of the mortgage.

Judgment and order denying motion for new trial must be affirmed, with costs.

Osborne, J.,.concurs.