De Luca v. Archer Manufacturing Co.

49 Misc. 645, 97 N.Y.S. 1026

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Scott, J.

This judgment cannot stand and, upon the admitted facts, the plaintiff cannot recover in this action. In January, 1900, one Ferdinando Cinque gave to defendant a chattel mortgage covering some barber’s furniture, as security for the payment of $776 in weekly installments of $4 each. This mortgage was duly refiled, from year to year, so as to be kept alive. Cinque paid with more or less regularity and, in October, 1901, being then in arrear, sold the chattels to plaintiff under a bill of sale, which recited that the sale was made subject to the mortgage. Thereafter, plaintiff made some payments upon the mortgage, and, in February, 1903, he voluntarily surrendered p^ession of the chattels to defendant, taking a receipt which incited that they came back for storage. Plaintiff continued to make payments until April, 1903, when he stopped paying. At that time he was about $220 in arrear, and he has never since paid or tendered anything on account of the amount due upon the mortgage. This action was begun more than two years thereafter. It is not disputed that the defendant lawfully obtained repossession of the chattels, and that there was, at the time of such repossession, a large amount due thereon. Under these circumstances, the plaintiff cannot obtain possession of them without paying or tendering the amount due thereon, and then, if at all, only in an equitable action of which the Municipal Court has no jurisdiction.

The judgment must he reversed, with costs to appellant, and the complaint dismissed, with costs.

Giegebich and Greenbaum, JJ., concur.

Judgment reversed, with costs to appellant, and complaint dismissed, with costs.