Buskirk v. Cleveland

New York Supreme Court

Buskirk v. Cleveland

41 Barb. 610, 1863 N.Y. App. Div. LEXIS 154

DecidedDecember 7, 1863

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Bluebook

Buskirk v. Cleveland, 41 Barb. 610, 1863 N.Y. App. Div. LEXIS 154 (N.Y. Super. Ct. 1863).

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Opinion

By the Court, Johnson, J.

The plaintiff acquired no title to the hay in question by virtue of the «provision in the lease giving her a lien upon the personal property which then was or might be afterwards put upon the demised premises. It does not purport to reserve the products of the farm, but provides only that the lessor “shall have a lien as security for the rent aforesaid, upon all the goods, wares, chattels, implements, fixtures, tools and other personal property, which are or may be put on the said demised premises.” If [612]*612this clause could be construed a chattel mortgage, it would he void as against judgment creditors, as it was never filed as such in the town clerk’s office. And as a chattel mortgage I incline to the opinion that it would be void for uncertainty. It does not identify any particular property, so that it could be known to what it was intended to apply. (See 3 Am. Law Reg. N. S. 31, 32 &c.) But it is not even a chattel mortgage. It contains no words of sale, and evidently was not intended to transfer the title to the chattels, at the time of the execution of the instrument. (Milliman v. Neher, 20 Barb. 37, 40.)

[Monroe General Term, December 7, 1863.

It is equally clear, I think, that the plaintiff acquired no title to the hay by virtue of the agreement to purchase and apply the value, or proceeds, upon the rent. The price was not definitely fixed.' But if it had been, the transaction rested in words merely, until after the levy. The value of the property was over fifty dollars, and nothing was paid, and no receipt or credit actually given. Clearly no title passed. (Brabin v. Hyde, 30 Barb. 265, and cases there cited.) The sale by virtue of the executions being valid as against the plaintiff, it is unnecessary to determine whether the chattel mortgage to Conderman was subject to the lease, or otherwise. The judgment of the county court and that of the justice must be reversed.

JS. D. Smith, J. C. Smith, and Johnson, Justices.]

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By the Court, Johnson, J.

The plaintiff acquired no title to the hay in question by virtue of the «provision in the lease giving her a lien upon the personal property which then was or might be afterwards put upon the demised premises. It does not purport to reserve the products of the farm, but provides only that the lessor “shall have a lien as security for the rent aforesaid, upon all the goods, wares, chattels, implements, fixtures, tools and other personal property, which are or may be put on the said demised premises.” If [612]*612this clause could be construed a chattel mortgage, it would he void as against judgment creditors, as it was never filed as such in the town clerk’s office. And as a chattel mortgage I incline to the opinion that it would be void for uncertainty. It does not identify any particular property, so that it could be known to what it was intended to apply. (See 3 Am. Law Reg. N. S. 31, 32 &c.) But it is not even a chattel mortgage. It contains no words of sale, and evidently was not intended to transfer the title to the chattels, at the time of the execution of the instrument. (Milliman v. Neher, 20 Barb. 37, 40.)

[Monroe General Term, December 7, 1863.

It is equally clear, I think, that the plaintiff acquired no title to the hay by virtue of the agreement to purchase and apply the value, or proceeds, upon the rent. The price was not definitely fixed.' But if it had been, the transaction rested in words merely, until after the levy. The value of the property was over fifty dollars, and nothing was paid, and no receipt or credit actually given. Clearly no title passed. (Brabin v. Hyde, 30 Barb. 265, and cases there cited.) The sale by virtue of the executions being valid as against the plaintiff, it is unnecessary to determine whether the chattel mortgage to Conderman was subject to the lease, or otherwise. The judgment of the county court and that of the justice must be reversed.

JS. D. Smith, J. C. Smith, and Johnson, Justices.]

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41 Barb. 610, 1863 N.Y. App. Div. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buskirk-v-cleveland-nysupct-1863.

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