Brown v. Cook

New York Court of Common Pleas

Brown v. Cook

3 E.D. Smith 123

DecidedMay 15, 1854

StatusPublished

This text of 3 E.D. Smith 123 (Brown v. Cook) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Cook, 3 E.D. Smith 123 (N.Y. Super. Ct. 1854).

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Opinion

By the Court. Ingraham, First J.

This court has repeatedly held that a mortgagee who holds a mortgage on personal property, payable on demand, may maintain an action for the recovery of the property from any one unlawfully taking away the property without proof of demand of the money due on the mortgage. As between the mortgagor and the mortgagee a demand may be necessary, but as between the mortgagee, and a wrong-doer, such proof may be dispensed with. (See Cassedy v. Hunt, N. Y. C. P. decided June 8, 1844; Delano v. Thurnell, ib. decided February, 1842; 1 Comst. 496; 8 Pick. 333; 3 Sand. S. C. R. 607.

Whether or not the mortgage was fraudulent, was a question of fact for the jury. With their finding we cannot interfere.

If the mortgagor had an interest which might have been levied or held under a judgment against him, still that did not authorize an absolute sale of the property. This has been repeatedly held by the Supreme Court and by this court.

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By the Court. Ingraham, First J.

This court has repeatedly held that a mortgagee who holds a mortgage on personal property, payable on demand, may maintain an action for the recovery of the property from any one unlawfully taking away the property without proof of demand of the money due on the mortgage. As between the mortgagor and the mortgagee a demand may be necessary, but as between the mortgagee, and a wrong-doer, such proof may be dispensed with. (See Cassedy v. Hunt, N. Y. C. P. decided June 8, 1844; Delano v. Thurnell, ib. decided February, 1842; 1 Comst. 496; 8 Pick. 333; 3 Sand. S. C. R. 607.

Whether or not the mortgage was fraudulent, was a question of fact for the jury. With their finding we cannot interfere.

If the mortgagor had an interest which might have been levied or held under a judgment against him, still that did not authorize an absolute sale of the property. This has been repeatedly held by the Supreme Court and by this court.

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Bluebook (online)

3 E.D. Smith 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-cook-nyctcompl-1854.