Baumann v. Libetta — 52 N.Y. St. Rep. 492

Majority

p. 492

Samuel Baumann, App'lt, v. Carlo Libetta, Resp't.

(New York Common Pleas, General Term,

Filed May 8, 1893.)

Headnote

Chattel mortgage—Recital as to residence of mortgagor.

The statute requires a chattel mortgage to be filed in the place where the-mortgagors actually reside, and the fact that the mortgage recites that the mortgagor is a resident of a certain place does not take the case out of the rule or estop a bona fide purchaser from claiming that the actual residence is at another place.

Appeal from a judgment rendered in the district court of the city of New York for the ninth judicial district.

George Hahn, for app’lt; Ullo, Ruebsamen & Cochran, for resp’t.

This action was brought to recover the sum of $100, alleged to be the value of certain carpets and other articles of furniture claimed by the plaintiff to be his property and to have been converted by the defendant. The answer was a general denial.

From the return it appears that the plaintiff’s assignor was a re.tail dealer in furniture in the city of New York. On the 4th January, 1892, one Ferdinand Servat bought of plaintiff's assignor the articles in question for the sum of $249.90, and directed that the goods should be sent ‘to No. 131 West Twenty-third street, New York city. Servat at the time paid on account of the purchase the sum of forty dollars and executed a chattel mortgage on the goods to the plaintiff's assignor to secure the payment in instal-

p. 493

meats of the remainder of the purchase money. This mortgage was afterwards and before the commencement of this action assigned to the plaintiff, and the same was filed in the office of the register of the city and county of New York, but no copy was at any time filed in Kings county. It further appears that the purchaser had a place of business at No. 131 west Twenty-third street, in the city of New York, but at no time lived there or had any residence in the city and county of New York, but lived with his family in the city of Brooklyn, in the county of Kings. On the 19th April, 1892, the purchaser sold his business and the goods sued for in this action to the defendant herein and one Dell Aquila for the sum of $1,600, which was the full value of the business and the goods; that the purchase was made in good faith, and without any knowledge of the existence of the mortgage on the part of the purchasers ; and that subsequently the said Dell Aquila sold his interest to the wife of the defendant. After this sale by Servat, he failed to pay the instalments due under the mortgage, and was in arrears therefor. The defendant took possession of the goods at the time of the sale, and remained in possession until the commencement of this action, and the plaintiff ■demanded the goods from him before it was commenced, and he refused to deliver them.

The mortgage itself recites that Servat, at the time of making the mortgage, resided in the city and county of New York ; and it is now claimed that this estops the defendant from claiming that it was not the actual residence of his grantor, Servat. But the law of 1833, chap. 279, relating to the filing of chattel mortgages, provides that the mortgage shall be filed in the city where the mortgagor shall reside at the time of the execution thereof. 'This residence was determined by the judge who tried the case to have been at the time in the city of Brooklyn, county of Kings, and, indeed, he could not have found otherwise from the evidence. The statute is so direct in its language as to admit, in our judgment, of no other conclusion than that arrived at by the justice below. This very question has been before the United States ■circuit court for this circuit, and Blatchford, J., in the course of his decision, stated that “ the statute had imposed a rigid and unbending condition, to wit, a filing in the place where the mortgagors actually reside, as a preliminary to the validity of the mortgage. Whether this condition is wise or not, whether convenient or difficult of performance, is not for the courts to say. The statute exacts it and the courts must see that it is performed.” Pla tt v. Stewart, 13 Blatch., 481; which was affirmed by the supreme court of the United States in 101 U. S., 737 . Nor will the fact that the mortgage itself recited that the mortgagor was a resident of the city and county of New York take the case out of this rule. This was expressly held by Nelson, Oh. J., in Chandler v. Bunn, Hill & Den. Supp., 167, where he said: “ The recital of the residence in the mortgage seems to be of no importance, and might, for the matter of security, be omitted altogether.” It certainly was no notice to the defendant, whom the justice below held to have purchased in good

p. 494

faith. He was not bound to look to any other city or county than the one in which the mortgagor resided to ascertain whether or not a mortgage had been filed. The law imposed no such duty upon him. Besides, the recital in the mortgage was nothing more than a declaration of the mortgagor as to-his residence, and the declarations of mortgagors of personal property are not evidence against a bona fide purchaser of such property. Marsh v. Kinney, 11 W. Dig., 144; Hurd v. West, 7 Cow., 752 ; Whitaker v. Brown, 8 Wend., 490 ; Latimer v. Lord, 17 W. Dig., 516.

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

Bischoff, J., concurs.