Graebner v. Marlborough Delicatessen, Inc.

235 A.D. 640

Opinion

Judgment and order for additional judgment modified by striking therefrom the provision for a money judgment against appellant Louise Gennerich, and as so modified unanimously affirmed, with costs to said appellant against respondent. In all other respects the judgment and order are unanimously affirmed, with costs to respondent against appellants Butter and The Marlborough Delicatessen, Inc. There is no evidence that appellant Louise Gennerich, as mortgagee, retained the property covered by the chattel mortgage, or converted it. In this respect the case differs from Murtha v. Curley (90 N. Y. 372). Furthermore, there is not sufficient evidence of the value of the property covered by the chattel mortgage to warrant a money judgment against said appellant. The facts warrant a finding based upon fraud sufficient to void the chattel mortgage, but do not warrant a money judgment against said appellant. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Present — Lazansky, P. J., Hagarty, Carswell, Scudder and Davis, JJ. Settle order on notice.