Darrow v. Wendelstadt

Appellate Division of the Supreme Court of New York

Darrow v. Wendelstadt

43 A.D. 426, 60 N.Y.S. 174

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1899

StatusPublished

Cited by2 cases

This text of 43 A.D. 426 (Darrow v. Wendelstadt) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Darrow v. Wendelstadt, 43 A.D. 426, 60 N.Y.S. 174 (N.Y. Ct. App. 1899).

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Opinion

WlLLARD BARTLETT, J.:

. This is an action to recover damages for the alleged conversion of groceries and other°contents of a grocery store, which had come into the possession of the plaintiff under a bill of sale which, both parties concede to hav'e been a chattel mortgage. At the time of the alleged conversion, according to the testimony of the plaintiff, he offered to pay the defendant the amount due on the notes secured by the chattel mortgage, but the defendant demanded a larger amount on account of losses which he claimed to have sustained in carrying on the plaintiff’s grocery business. Upon: the plaintiff’s refusal to pay this greater sum, the defendant excluded him from the store and subsequently sold the goods.

It is settled in this State that; after default in the payment of a debt secured by a chattel mortgage, the legal title of the mortgagee becomes absolute, and he is thereafter to be deemed the general owner of the mortgaged property. (Casserly v. Witherbee, 119 N. [427]*427Y. 522.) In the case cited, the Court of Appeals expressly held that the mortgagor after default could maintain no action whatever at law against the mortgagee. Ordinarily, nothing remains to the former except a right of redemption, which can be enforced only in equity.

Under this rule the learned trial judge correctly decided that the plaintiff could not maintain the present suit, which is an action at law to recover damages for the conversion of the mortgaged property. He did not hold that the plaintiff had no rights growing out of the facts proved, but merely that he ought not to prevail so far as this particular cause of action was concerned. If the account which the plaintiff gives of his transactions with the defendant is correct, he may well be entitled to some relief, either in the form of an accounting or an opportunity to redeem the mortgaged property. But whatever the relief may be to which he is entitled, it must be sought on the equity' side of the court arid not in a suit at law.

For these reasons the judgment appealed from must be affirmed, without prejudice, however, to the bringing of an appropriate action for equitable relief.

All concurred.

Judgment affirmed, with costs, -without prejudice to the bringing of an appropriate action for equitable relief.

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WlLLARD BARTLETT, J.:

. This is an action to recover damages for the alleged conversion of groceries and other°contents of a grocery store, which had come into the possession of the plaintiff under a bill of sale which, both parties concede to hav'e been a chattel mortgage. At the time of the alleged conversion, according to the testimony of the plaintiff, he offered to pay the defendant the amount due on the notes secured by the chattel mortgage, but the defendant demanded a larger amount on account of losses which he claimed to have sustained in carrying on the plaintiff’s grocery business. Upon: the plaintiff’s refusal to pay this greater sum, the defendant excluded him from the store and subsequently sold the goods.

It is settled in this State that; after default in the payment of a debt secured by a chattel mortgage, the legal title of the mortgagee becomes absolute, and he is thereafter to be deemed the general owner of the mortgaged property. (Casserly v. Witherbee, 119 N. [427]*427Y. 522.) In the case cited, the Court of Appeals expressly held that the mortgagor after default could maintain no action whatever at law against the mortgagee. Ordinarily, nothing remains to the former except a right of redemption, which can be enforced only in equity.

Under this rule the learned trial judge correctly decided that the plaintiff could not maintain the present suit, which is an action at law to recover damages for the conversion of the mortgaged property. He did not hold that the plaintiff had no rights growing out of the facts proved, but merely that he ought not to prevail so far as this particular cause of action was concerned. If the account which the plaintiff gives of his transactions with the defendant is correct, he may well be entitled to some relief, either in the form of an accounting or an opportunity to redeem the mortgaged property. But whatever the relief may be to which he is entitled, it must be sought on the equity' side of the court arid not in a suit at law.

For these reasons the judgment appealed from must be affirmed, without prejudice, however, to the bringing of an appropriate action for equitable relief.

All concurred.

Judgment affirmed, with costs, -without prejudice to the bringing of an appropriate action for equitable relief.

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43 A.D. 426, 60 N.Y.S. 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darrow-v-wendelstadt-nyappdiv-1899.

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