Gore v. Glover

49 Misc. 473, 97 N.Y.S. 969

Opinions

Scott, J.

In my opinion, no question as to the power of the Municipal Court to entertain an equitable" defense is involved in this appeal. The defendant does not seek, by his defense, to alter or reform the written instrument, but merely seeks to show the entire agreement between the parties. Every chattel mortgage involves, in terms, an absolute transfer of title; and, in contemplation of law, the title does pass to the mortgagee subject to being divested by the performance by the mortgagor of the conditions. It is that condition which distinguishes a chattel mortgage from an absolute bill of sale; and it is well settled that the condition need not be inserted in the bill of sale itself, but may be evidenced by a contemporaneous agreement outside of the bill of sale. This is what the defendant contended and the court found was the state of facts in the present case. It is apparent that justice has been done by the judgment appealed from and there is grave danger that injustice would result if we were to reverse the judgment with an opinion which would virtually compel a judgment in defendant’s favor upon a new trial. We should not be astute to'find a means of attaining that end. ■

The judgment should be affirmed with costs.

Gbeenbaum:, J., concurs.