Frost v. . Warren

New York Court of Appeals

Frost v. . Warren

42 N.Y. 204, 1870 N.Y. LEXIS 41

CourtNew York Court of Appeals

DecidedMarch 26, 1870

StatusPublished

Cited by23 cases

This text of 42 N.Y. 204 (Frost v. . Warren) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frost v. . Warren, 42 N.Y. 204, 1870 N.Y. LEXIS 41 (N.Y. 1870).

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Opinions

Foster, J.

There aré only two questions in the case, arising oh thé charge of the judge, and his refusal tó direct a verdict, although the counsel for the defendant raises the point that thé judgment should bé reversed, because thé court charged: “If the jury should find that Michael intended a fraud by giving the mortgage, still the mortgage was a valid instrument, unless the plaintiff was himself a party to the fráudulént intent.” In reference to this, it need only bé said, that there is ño éxception to it; and, of course, the question is not properly before us, and judging from the opinion delivered in the court below, it was not presented there, but appears now for the first time.

The réal questions are, whether the amount which was stated in thé chattel mortgage, and which was greater than thé actual liability of the plaintiff for the mortgagor, and for the security of which it was givén, rendered it void per se. And so, also; whether thé proof given on thé trial showed that the mortgageé had given the mortgagor such permission to dispose of thé mortgaged property, as rendered the mortgage void in law. For if so, in either respect, thé chaige was not only erroneous, but the court erred in not ordering á verdict for the defendant.

. In regard tó the amount stated in the nioftgáge, the language of it does not come fully up, in stating it as a security for future liabilities, to that in thé case of Miller v. Lockwood, and yet it referred to the direct and collateral security which the mortgagee had' "assumed, and comes within thé principle of that case, and, at mbst, was "a badge of fraud, to be passed upon by the jury.

*208 •As to the proof given upon the subject of the sales made by the mortgagor after the mortgage was executed, there was no such direct proof as rendered the question palpably plain, but it was to be decided upon all the facts and circumstances proved; and the inferences to be drawn from them were peculiarly for the jury. And in regard to that, I think the charge was as favorable to the defendant as the case called for.

The case shows that the goods in question were mainly obtained upon the credit of the plaintiff, and were manifestly less in amount than tire direct responsibility which he had incurred. And the jury having passed upon all the questions "of fact, and found no fraudulent intent, the judgment should be affirmed.

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Foster, J.

There aré only two questions in the case, arising oh thé charge of the judge, and his refusal tó direct a verdict, although the counsel for the defendant raises the point that thé judgment should bé reversed, because thé court charged: “If the jury should find that Michael intended a fraud by giving the mortgage, still the mortgage was a valid instrument, unless the plaintiff was himself a party to the fráudulént intent.” In reference to this, it need only bé said, that there is ño éxception to it; and, of course, the question is not properly before us, and judging from the opinion delivered in the court below, it was not presented there, but appears now for the first time.

The réal questions are, whether the amount which was stated in thé chattel mortgage, and which was greater than thé actual liability of the plaintiff for the mortgagor, and for the security of which it was givén, rendered it void per se. And so, also; whether thé proof given on thé trial showed that the mortgageé had given the mortgagor such permission to dispose of thé mortgaged property, as rendered the mortgage void in law. For if so, in either respect, thé chaige was not only erroneous, but the court erred in not ordering á verdict for the defendant.

. In regard tó the amount stated in the nioftgáge, the language of it does not come fully up, in stating it as a security for future liabilities, to that in thé case of Miller v. Lockwood, and yet it referred to the direct and collateral security which the mortgagee had' "assumed, and comes within thé principle of that case, and, at mbst, was "a badge of fraud, to be passed upon by the jury.

*208 •As to the proof given upon the subject of the sales made by the mortgagor after the mortgage was executed, there was no such direct proof as rendered the question palpably plain, but it was to be decided upon all the facts and circumstances proved; and the inferences to be drawn from them were peculiarly for the jury. And in regard to that, I think the charge was as favorable to the defendant as the case called for.

The case shows that the goods in question were mainly obtained upon the credit of the plaintiff, and were manifestly less in amount than tire direct responsibility which he had incurred. And the jury having passed upon all the questions "of fact, and found no fraudulent intent, the judgment should be affirmed.

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42 N.Y. 204, 1870 N.Y. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frost-v-warren-ny-1870.

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