In re National Browne Co.

Second Circuit

In re National Browne Co.

151 F.2d 595, 1945 U.S. App. LEXIS 2999

CourtCourt of Appeals for the Second Circuit

DecidedNovember 1, 1945

DocketNo. 75

StatusPublished

Cited by2 cases

This text of 151 F.2d 595 (In re National Browne Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re National Browne Co., 151 F.2d 595, 1945 U.S. App. LEXIS 2999 (2d Cir. 1945).

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Opinion

FRANK, Circuit Judge.

[1] Under the law of the State of New York, a chattel mortgage which is not accompanied by an immediate delivery of the mortgaged property to the mortgagee is void as against creditors of the mortgagor, unless the mortgage or a true copy is filed pursuant to the Lien Law, Consol.Laws, c.33, § 230.

Section 232 of the Lien Law (as the section stood on August 26, 1944) reads as follows: “If the chattels mortgaged are in the city of New York at the time of the execution of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the property is situated.”

The filing on August 26 did not sufficiently comply with this requirement. The statute requires that the copy must be filed in two places, i. e., (1) the county where the mortgagor “alleges to reside,” and¹ (2) where the property is situated. Petition of Turchin, 260 App.Div. 447, 23 N.Y.S.2d 144. There is no merit in appellant’s contention that the statute is satisfied if the mortgage is filed in the county where the mortgagor alleges the property to be. Appellants rely on cases dealing with the alleged residence of the mortgagor, which are not in point here. We see no reason to read “and” as “or.” Strict compliance with the statute is required to create the lien. In re Parkway Knitting Mills, Inc., 2 Cir., 119 F.2d 605; Ely v. Carnley, 19 N.Y. 496. The appellant has not shown such compliance, and consequently the appeal must fail.

Affirmed.

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FRANK, Circuit Judge.

[1] Under the law of the State of New York, a chattel mortgage which is not accompanied by an immediate delivery of the mortgaged property to the mortgagee is void as against creditors of the mortgagor, unless the mortgage or a true copy is filed pursuant to the Lien Law, Consol.Laws, c.33, § 230.

Section 232 of the Lien Law (as the section stood on August 26, 1944) reads as follows: “If the chattels mortgaged are in the city of New York at the time of the execution of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the property is situated.”

The filing on August 26 did not sufficiently comply with this requirement. The statute requires that the copy must be filed in two places, i. e., (1) the county where the mortgagor “alleges to reside,” and¹ (2) where the property is situated. Petition of Turchin, 260 App.Div. 447, 23 N.Y.S.2d 144. There is no merit in appellant’s contention that the statute is satisfied if the mortgage is filed in the county where the mortgagor alleges the property to be. Appellants rely on cases dealing with the alleged residence of the mortgagor, which are not in point here. We see no reason to read “and” as “or.” Strict compliance with the statute is required to create the lien. In re Parkway Knitting Mills, Inc., 2 Cir., 119 F.2d 605; Ely v. Carnley, 19 N.Y. 496. The appellant has not shown such compliance, and consequently the appeal must fail.

Affirmed.

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Bluebook (online)

151 F.2d 595, 1945 U.S. App. LEXIS 2999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-national-browne-co-ca2-1945.

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