Herder v. Walther

The only ground for this motion is the fact that Nixon v. Stanley, 33 Hun, 248 , based upon Swift v. Hart, 12 Barb., 530 , is contrary to the decision of the general term of this court in this case, and it is claimed that there is no decision of the court of appeals decisive of the question involved here, and this notwithstanding the decision of the court of appeals in Marsden v. Cornell, 62 N. Y., 219 . In the latter case that court expressly holds that on a failure to file a true copy of a chattel mortgage, together with the statement required by law, within thirty days next preceding the expiration of the year, the mortgages cease to be valid against subsequent bona fide purchasers or creditors. In the course of that decision the court notices Swift v. Hart, supra, and states that so far as that case conflicts with the opinion then delivered, it was not approved by thát court. Row Swift v. Hart proceeds upon the theory that a chattel mortgage, after the expiration of the year, becomes dormant as' respects bona fide purchasers and creditors, but that such instrument may be revived by refiling it after the expiration of the year. This we think in direct conflict with Marsden v. Cornell. A dormant instrument may be revived and made effectual by