In re the People

273 A.D. 777, 74 N.Y.S.2d 834, 1947 N.Y. App. Div. LEXIS 3113

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1947
• Status: Published

Opinion

Appeal by claimant from an order, entered in reorganization proceedings on a final accounting by a trustee of a certificated mortgage, insofar as it rejected her claim for an alleged deficiency under a chattel mortgage. Order, insofar as appealed from, affirmed, with $10 costs and disbursements to respondent Manufacturers Trust Company. The pertinent statutes do not require a trial of such a claim in such a proceeding. The rejection of the claim for the alleged deficiency under the chattel mortgage relegated the claimant to an action to enforce the alleged deficiency. In such an action the mortgagor would be afforded an opportunity to contest the claim in whole or part (Consumers Brewing Go. v. Braun, 147 App. Div. 171; Willcox v. Perez, 115 App. Div. 693; Hyer v. Sutton, 59 Hun 40; Harrison v. Hall, 239 Y. Y. 51, 53; 2 Jones, Chattel Mortgages and Conditional Sales, § 711; Cottone v. Spivach, 159 Y. Y. S. 241 [not officially published]; Gase v. Boughton, 11 Wend. 106), where the alleged sale, upon which the alleged deficiency is based, was not made in the course of an action to foreclose the mortgage. Here the alleged sale was made pursuant to the terms of the chattel mortgage. Hagarty, Acting P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.