Bullard v. Kenyon — 49 N.Y. St. Rep. 132

Majority

p. 132

Charles E. Bullard et al., App’lts, v. James H. Kenyon nd Ellen M. Kenyon, Impl’d, Resp'ts.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

Chattel mortgage—General creditor cannot attack for failure TO FILE..

A mere creditor at large cannot avail himself of a neglect to file a chattel mortgage, as he is not a creditor within the meaning of the statute.

Appeal from judgment in favor of defendants.

Action to set aside a chattel mortgage on the ground that it was given for the purpose of defrauding the creditors of the defendants Kenyon, and that plaintiffs were judgment creditors of

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defendants Kenyon. It appeared that prior to July 6, 1889, defendants purchased goods of plaintiffs ; that on that day defendants gave a chattel mortgage to defendant Harris, which was not filed until September 6, 1889 ; that it was refiled in August, 1890, and foreclosed in March, 1891; that plaintiffs recovered judgment on their debt after the refiling.

E. G. Bullard (E. F. Bullard, of counsel), for app’lts; Henning & McCall (W. H. McCall, of counsel), for resp’ts.

I think the judgment in this case should be affirmed. The trial court found that the mortgage in question was not given in fraud of creditors ; that it was for a valuable consideration and was a bona fide transaction. The appellants cannot avail themselves of the neglect to file the mortgage, because during the time it was not on file they were not creditors within the meaning of the statute. Laws 1883, chap. 279.

The debt was not contracted during that time, and they were merely creditors at large. “ The term ‘ creditors of the mortgagor ’ has been defined by these decisions to be a creditor armed with some legal process which authorizes him to seize the property, such as an execution issued upon a judgment or an attachment. A mere creditor at large, without some process for the collection or enforcement of his debt, is not in a position to question an unfiled mortgage given by his debtor which is otherwise valid.” Button v. Rathbone, Sard & Co., 126 N. Y., 187 -91; 36 St. Rep., 945 , and cases cited.

Let the judgment be affirmed, with costs.

Mayham, P. J., concurs; Putnam, J., concurs in result.