Biehler v. Irwin

Appellate Terms of the Supreme Court of New York

Biehler v. Irwin

84 N.Y.S. 574

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 6, 1903

StatusPublished

This text of 84 N.Y.S. 574 (Biehler v. Irwin) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Biehler v. Irwin, 84 N.Y.S. 574 (N.Y. Ct. App. 1903).

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Opinion

BISCHOFF, J.

While it was indicated that the mortgagor’s time to make payments upon the chattel mortgage had been extended, the defendant did not suggest that the extension endured to the time of the levy, and from the plaintiff’s evidence in rebuttal it appeared that the mortgagor was at that time in default. The plaintiff’s right of possession was therefore complete at the date of the alleged wrongful taking by the defendant, and the authorities relied upon in support of this appeal have no application. After default the mortgagor had no interest in the chattels which could be sold on execution against him (Leadbetter v. Leadbetter, 125 N. Y. 290, 26 N. E. 265, 21 Am. St. Rep. 738), and the conversion was certainly established. In view of the defendant’s failure to produce the inventory of the property sold, the plaintiff’s evidence of value,-taken with proof of the defend^ ant’s admission that the goods covered by the mortgage were sold, suffices to support the finding of the amount of damages, and it would seem from the record that the plaintiff’s witnesses on the issue of the identity of the goods were the more credible. The measure of damage was the value of the property irrespective of the mortgage debt,' the difference being the subject of an accounting between the parties to the mortgage. Bigelow v. Goble, 9 App. Div. 391, 397, 41 N. Y. Supp. 299.

Judgment affirmed, with costs. All concur.

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BISCHOFF, J.

While it was indicated that the mortgagor’s time to make payments upon the chattel mortgage had been extended, the defendant did not suggest that the extension endured to the time of the levy, and from the plaintiff’s evidence in rebuttal it appeared that the mortgagor was at that time in default. The plaintiff’s right of possession was therefore complete at the date of the alleged wrongful taking by the defendant, and the authorities relied upon in support of this appeal have no application. After default the mortgagor had no interest in the chattels which could be sold on execution against him (Leadbetter v. Leadbetter, 125 N. Y. 290, 26 N. E. 265, 21 Am. St. Rep. 738), and the conversion was certainly established. In view of the defendant’s failure to produce the inventory of the property sold, the plaintiff’s evidence of value,-taken with proof of the defend^ ant’s admission that the goods covered by the mortgage were sold, suffices to support the finding of the amount of damages, and it would seem from the record that the plaintiff’s witnesses on the issue of the identity of the goods were the more credible. The measure of damage was the value of the property irrespective of the mortgage debt,' the difference being the subject of an accounting between the parties to the mortgage. Bigelow v. Goble, 9 App. Div. 391, 397, 41 N. Y. Supp. 299.

Judgment affirmed, with costs. All concur.

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Bluebook (online)

84 N.Y.S. 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biehler-v-irwin-nyappterm-1903.

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