McCormick v. Venable — 34 N.Y. St. Rep. 717

Majority

p. 717

James T. McCormick, Resp’t, v. George W. Venable et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Chattel mortgage—Notice to subsequent mortgagee—Reviling.

A chattel mortgage was given to plaintiff’s assignor in March, 1887, and. filed. A subsequent mortgage was given to defendants in May, 1888, and filed. Plaintiff’s mortgage was not refiled. It was shown that defendants' agent was informed of plaintiff’s mortgage in 1887, and in the fall of 1888 stated that the defendants’ mortgage would not interfere with the first mortgage. Defendant admitted that he knew there had been a prior mortgage, but not that it was unpaid. M> Id, that the evidence was sufficient to show notice of the prior mortgage, and therefore defendants’ mortgage was subject to it even if not filed or renewed.

Appeal from judgment in favor of plaintiff.

This action was brought to obtain a permanent injunction to restrain the defendants from foreclosing a chattel mortgage which they held on bar-room furniture and fixtures in store Ho. 196 Rockaway avenue, Brooklyn.

Hugo Hirsh, for app’lts; Wm. M. Benedict, for respt.

On the '16th of February, 1887, one Lucey executed and delivered to Peter H. Ahlers a chattel mortgage on certain bar-room fixtures and appurtenants for $550. The mortgage was filed in the proper office in Brooklyn, March 4, 1887. On the 26th of May, 1888, Lucey executed a mortgage on the same property to the defendants, which was properly filed the next day. This mortgage was for $600. The plaintiff owns the rights of Ahlers. The Ahlers mortgage contains a clause which prohibits the removal of the mortgaged property from the building, which is owned by Ahlers. This Ahlers mortgage has never been refiled, but the court found that the defendants’ mortgage was taken by them with full knowledge of the existence of the Ahlers mortgage.

The principal point upon the appeal is whether the proof of notice is sufficient. The evidence upon this point supports the finding.

Ahlers testified that he told the defendants’ agent, in the fall of 1887, that he held a mortgage on the property in question, and what was due upon it. This statement is supported by a son of Mr. Ahlers. In the fall of 1888 the defendants’ agent is proven to have stated to Ahlers, senior, that the defendants’ mortgage would not interfere with the Ahlers mortgage, and that he knew of its existence.

The interview in 1888 is also testified to by one John Horan. The common mortgagor,. Lucey, testifies that the plaintiff’s (Ahlers) mortgage is unpaid. That he told the defendants it was unpaid, and that he could give none to interfere with it. The defendants knew of the mortgage, had seen the record and knew that it had not been refilled. The defendants’ agent, Hays, admits knowledge of the existence of the first mortgage, but denies only that the amount due upon it was stated to him.

The defendant Yenable admits knowledge or information that there had been a prior mortgage, but that he did not know it was unpaid. His testimony seems to be based upon the record that there was no unpaid mortgage because it was not renewed. Notice of the prior mortgage made the defendants’ mortgage subject to it, even if not filed or renewed. Gildersleeve v. Landon, 73 N. Y., 609 , and cases therein cited.

Ths exceptions taken, whether well or ill taken, hurt no one. None of these bear upon the question of notice of the first mortgage, and they are, therefore, insufficient to .set aside the finding on that question.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.