Majority
p. 748Richard Lathers, App’lt, v. Jacob H. Hunt, Resp’t. (New York Common Pleas, General Term, Filed April 6, 1891.)
Headnote
Chattel mortgage—Possession of mortgaged chattels by mortgagee DOES NOT SATISFY MORTGAGE DEBT.Where a tenant has given a mortgage on his household furniture _ to secure the rent, and afterwards removes from the premises, abandoning the furniture, which the landlord takes possession of and stores, Held, that in the absence of proof of a conversion, this does not operate as a satisfaction of the mortgage debt.
p. 749
Appeal from judgment for defendant in the eleventh district court. •
Action for rent of certain premises demised to defendant. Defendant had given a chattel mortgage to plaintiff to secure payment of the rent, and thereafter removed from the premises, abandoning the furniture, which plaintiff took possession of and stored in one of the rooms. In this action defendant claimed to have been discharged from liability by these facts, and counterclaimed for damages by reason of such taking and use. The facts fully appear in the former report of the case in 32 1ST. Y. State • Rep., 691.
Fernando Solinger, for resp’t; Joseph Wamsley, for app’lt.
Twice has this case been here on appeals by the defendant-; and it is again before us on substantially the same state of facts. On the former occasions the law of the case was clearly and fully propounded for the guidance of the court below, by Bischoff and Daly, JJ., 9 N. Y. Supp., 494 ; 30 N. Y. State Rep., 432, and by Bookstaver, J., 10 N. Y. Supp., 529 ; 32 N. Y. State Rep., 691. At the trial under review the only development, if any, to vary the case was evidence of alleged injury to the furniture ; but we are of opinion that such evidence was insufficient in law to fix the plaintiff with liability.
Judgment reversed and new trial ordered, costs to abide the t event.
Daly, Oh. J., Bischoff and Pryor, JJ., concur.