Klienberger v. Brown — 30 N.Y. St. Rep. 246

Majority

p. 246

T. Sigmund Klienberger, Resp’t, v. Harris Brown et al., App’lts.

(New York Superior Court,

General Term,

Filed March 4, 1890.)

Headnote

1. Conversion—Foreclosure by second mortgagee oe chattels.

The act of a second mortgagee of chattels in taking possession of and selling the mortgaged property after the first mortgage has become due is a conversion.

3. Trial—Failure to request submission to jury.

Where a defendant moves for a dismissal of the complaint, and makes no request to have any question submitted to the jury, an exception to a direction to find for the plaintiff raises no question for review.

p. 247

Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury on the trial of this action at trial term, and from an order denying a motion for a new trial.

Plaintiff sold a restaurant to one Anstead for §500 in cash, and ten promissory notes for fifty dollars each, secured by a chattel mortgage on the chattels and property sold. Two of the notes were paid, but the third note becoming due, the mortgagor received a short extension of time from the plaintiff. Previous to the maturity of the third note, Anstead had executed and delivered to defendant a chattel mortgage upon the same goods and chattels which were mortgaged to plaintiff, and upon default of payment of this mortgage defendant sold the chattels under foreclosure proceedings. Plaintiff claims that by these foreclosure proceedings defendants had converted his property.

Smith Tuttle, for app’lts; ‘Abraham L. Jacobs, for resp’t.

In Champlin v. Johnson, 39 Barbour, 608, after a careful review of all the authorities, it was held that on a default in a condition of a chattel mortgage the title to the mortgaged property became absolute, and that the mortgagor had no interest in the property that could be sold on execution ; that it made no difference that the mortgagor remained in possession ; that a sale of the mortgaged property under an execution against the mortgagor was a conversion of such mortgaged property.

This case was cited with approval in 58 N. Y., 664 .

As the defendant claims only through the mortgagor, and as the mortgagor had no title or interest in the mortgaged property .after the 23d of December, 1887, the act of the defendant in taking possession of and selling the mortgaged property after that time was a conversion.

If defendant took possession of the property before December 23, he was bound to return it to plaintiff on demand, and if he refused he was guilty of conversion. If he took possession after the 23d of December, the taking was a conversion, and the defendant was, in either event, liable.

There was evidence that the sale under the mortgage took place on December 22d. There was also evidence that would justify a finding that it took place some days later and as late as December 31st.

If the defendant desired to have had that question determined by the jury, he should have made a request to have it submitted. Ño such request was made. The defendant moved that the complaint be dismissed, which was properly denied, and the court then instructed the jury to find for the plaintiff. An exception to this direction does not raise any question for review.

In Ormes v. Dauchy, 82 N. Y., 448 , Miller J., says: “At the -circuit the judge directed a verdict in favor of the plaintiff, to which the defendant excepted. It is now claimed that the defendants having relied upon their motion to dismiss the complaint, and not having requested that any fact be submitted to the jury, it cannot be properly urged that there was any question of fact for the jury.

p. 248

“We think that the defendant should have asked to go to the jury upon the facts, and the exception to the rulings and direction of the court is not, under the circumstances, available.” See Dillon v. Cockcroft, 90 N. Y., 650 .

I do not think that any of the rulings on questions of evidence require that the judgment should be reversed. I think, therefore,, that the judgment should be affirmed, with costs.

Sedgwick, Oh. J., and Freedman, J., concur.