Hyperlawhypertext legal database Maxwell v. Inman 5 N.Y. St. Rep. 100

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Maxwell v. Inman

5 N.Y. St. Rep. 100 Court N.Y. Gen. Term English

Judges LANDON, J., concurs.

Delivered by Learned, P. J.

Contents

Majority

p. 100
Stewart Maxwell, Resp’t, v. Horace Inman, Appl’t.
(Supreme Court, General Term, Third Department,
Filed November, 1886.)

Headnote

Chattel moetgage — acknowledgment — cebtified copies of — hot evidence OF'EXECUTION — CODE ClV. FBO., § 934.
The defendant offered in evidence a paper certified by the town clerk to be copy of originals on file. The originals of which a copy was thus certified, were an alleged chattel mortgage, and an alleged acknowledgment thereof. Held, that a copy of a chattel mortgage certified by the town clerk, is no proof of the execution of the mortgage, because no proof of such execution need be on the instrument in order to require the town clerk to file it.
p. 101
Held, also that there is nothing in the statutes authorizing the filing of the acknowledgment of a chatttel mortgage or the certifying a copy of such acknowledgment.
Stover & Nesbit, for resp’t; F. J. Maxwell, for appl’t.

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To maintain Ms case tbe defendant offered in evidence a paper certified by tbe town clerk to be a copy of originals on file. Tbe originals (of wMcli a copy was thus certified) were an alleged chattel mortgage and an alleged acknowledgment thereof. Tbe defendants objected that tMs was not evidence of tbe execution of the instrument.

Sect. 934 of the Code Civ. Pro. is to tbe same effect as 1 R. S. m. p. 350, sect. 16 (1 Edm. 323). There is no change. And this provision of the Revised Statutes was in force when Bissell v. Pierce, 28 N.Y. 252 was decided.

It, therefore, did not modify or give greater effect to the provisions of Chap. 279, Laws 1833, Sect. 4. See 7th. Ed. Rev. Stat. p. 2250.

Now it was held in that case and again in Sunderlin, v. Hyman 17 Sup. Co. (10 Hun) 493, and in Fellows v. Hyring, 23 How. 231 , that a copy of a chattel mortgage certified by the town clerk was no proof of the execution of the mortgage. And this is necessarily so, because no proof of such execution need be on the instrument in order to require the town clerk to file it. Thus the case is different from that of conveyances of land.

Nor is there anything in the statutes authorizing the filing of the acknowledgment of a chattel mortgage, or the certifying a copy of such acknowledgment. It is otherwise as to deeds, 1 R. S. m. p. 760, sect. 263, 7th. Ed., Rev. Stat. p. 2220.

The town clerk has only to file any paper which appears to be a copy of a mortgage. If his certificate of a copy thereof is evidence, then the copy filed has more effect than the mortgage itself. Of course the Original of wMch the town clerk certifies a copy, is the paper in his office. And tins itself may be a pretended copy.

Sect. 934 of the Code Civ. Pro. is a general provision as to all papers, just as the corresponding provision was. 1 R. S. m. p. 350, Sect. 16. But the Stat. of 1833 specially provided as to the effect of certified copies of chattel mortgages, or of copies of chattel mortgages. That statute has. been construed, and construed correctly, and should be followed.

For this error. — Judgment reversed, new trial granted, costs to abide event.

LANDON, J., concurs.

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