Ament v. Zaharion

206 A.D. 143, 200 N.Y.S. 595, 1923 N.Y. App. Div. LEXIS 7161

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1923
• Status: Published

Opinion

Smith, J.:

Plaintiff brings this action to foreclose a lien, which he claims to have had by reason of the conditional sale of the property in question from the plaintiff to the Greece Contracting Company. The Greece Contracting Company was a copartnership consisting of three members, two of the members of the said firm residing in the borough of The Bronx, and the third residing in the borough of Kings. The conditional sale contract was filed in the borough of The Bronx and in the county of Westchester, but was not filed in the borough of Kings, where one of the partners resided.

Stephen Coufos, the appellant, swears that he was a purchaser of said property for value from the Greece Contracting Company, and that since his purchase the Greece Contracting Company has gone into bankruptcy, and has no interest to defend this action.

It seems to be settled law that in order to preserve the title of the conditional vendor under section 62 of the Personal Property Law (as amd. by Laws of 1920, chap. 635),

* the contract must be filed in the proper clerk’s office of the several counties in which the several conditional vendees resided. This has been held in an analogous case applying to a chattel mortgage, in the case of Bueb v. Geraty (28 Misc. Rep. 134), in'which the Appellate Term, through Mr. Justice Leventritt writing the opinion, stated: “ £ A chattel mortgage executed by a firm upon firm property, is void, under the New York statute, as against creditors, subsequent purchasers, and mortgagees in good faith, unless filed in the city or town where the individual members of the firm severally reside.’ ” The same rule has been held in the United States Supreme Court in construing the New York statute in Stewart v. Platt (101 U. S. 731, 737). In the case of Du Pont de Nemours Powder Company v. Jones Brothers (200 Fed. Rep. 638) the Ohio statute, substantially similar to our own, was construed, in which it was held that the conditional bill of sale must be filed in all of the counties where the different partners resided.

The respondent to sustain this order relies in part upon section 44 of the Personal Property Law (as amd. by Laws of 1914, chap. 507), treating of the transfer of goods in bulk, which makes such a transfer void as against the creditors, the transferors, or assignors of said property, except under certain conditions therein specified. The appellant has not sought to negative the existence of those conditions and has made no reference to the circumstances under which the property was sold by the Greece Contracting Company to him. In my judgment section 44 does not protect a conditional vendor of the property, as such, and he cannot foreclose his lien-under conditional contract. If he seeks protection as a creditor of the transferor it is very clear that the appellant is entitled to be made a party to the action, but no such claim is made in the cqmplaint, and cannot here be considered.

The appellant has paid full value for this property to the Greece Contracting Company, in good faith and without knowledge of the plaintiff’s claim. The Greece Contracting Company, being insolvent, has little interest to defend the action and the appellant is the only one who is interested to protect his title for which he has paid full value, and should properly be made a party defendant in the action.

The order denying appellant’s motion to be made a party defendant should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, and the appeal from the order denying motion for reargument dismissed.

Clarke, P. J., Merrell, McAvoy and Martin, JJ., concur.

Order of May 3, 1923, reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and appeal from order of May 21, 1923, dismissed.

Former art. 4. §§ 60-67, repeated and new art. 4 added by Laws of 1922, ohap. 642.— [Rep.