Miller v. Hart

Headnote

Mortgage — when weighing scales in a flouring mill are covered by the mortgage under the term “ appendages.” ' ,

Appeal from a judgment of tbe county court of Saratoga county in favor of the plaintiff, upon an appeal from a judgment recovered in a justice’s court.

The defendant executed a mortgage to the plaintiff upon “ all that certain flouring mill known, situate, lying and being near the said town of Clifton Park, and distinguished as Yischers’ mill, with appendages of every description now used in and about the same, consisting of all dams, water courses, waste weirs, lands flowed and so forth, with the right of way to and from the same as ordinarily used.” At the time of the execution of the mortgage there were certain articles in the mill, viz., weighing scales, scoops, mill-picks and a small hand corn sheller. The scales 'were platform scales and would weigh about 1,000 pounds, used in weighing grain and feed ground in the mill. Mill-picks were used to dress the stones, but were worn out. About the time when the plaintiff foreclosed the mortgage and purchased the premises the defendant took away and' appropriated these articles. The question is whether, by the mortgage and the foreclosure, these articles belonged to the plaintiff.

The court at General Term said : “We are inclined to think with the learned county judge, that by the words, ‘ all appendages now us'ed in and about said mill,’ following the description of the premises as a flouring mill, the parties intended that these articles should pass to the plaintiff. There is a difficulty, it is true, in construing the next clause, viz., ‘ consisting of all dams,’ etc., etc. But these dams, etc., are not accurately appendages used in and about a mill.’ So that some special meaning must be given to the word ‘ appendages.’ It seems to have been used to indicate articles used in the mills, but not attached to and forming part of the same.

“ The question is not free from doubt. Questions of this kind seldom are, from their very nature. On the whole we think the learned judge was correct.”