Industrial Loan Ass'n v. Saul

34 Misc. 188, 68 N.Y.S. 837

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1901
• Status: Published

Opinion

O’Gorman, J.

In order to maintain the validity of a chattel mortgage as against creditors and subsequent purchasers and mortgagees in good faith, there must be a strict and rigid observance of the statutory requirements. Stevenson Brewing Co. v. Eastern Brewing Co., 22 App. Div. 523. Plaintiff’s mortgage was filed April 6, 1898, and on February 17, 1899, forty-eight days before the expiration of the year, the renewal was filed. The statute, however, requires the filing to take place within thirty days before the expiration of the year, and the. refiling becomes absolutely nugatory if done either before or after the time fixed by the statute. Thomas Chat. Mtge., § 302; Jones Mtge. Pers. Prop., § 282; Newell v. Warner, 44 Barb. 258.

The defendant Saul as a warehouseman in possession of the chattels with a right to sell them in discharge of his lien, is to be regarded the same as a judgment creditor in respect to his right to assail the validity of the mortgage, and as such a creditor, whether the debt accrued before or after the default in the refiling, a mortgage, with the infirmities established against the one in question, becomes absolutely void. State Trust Co., v. Casino Co., 5 App. Div. 385. But, even if the validity of the mortgage could not be impeached, the defendant being a warehouseman was entitled to the payment of his lawful charges before being required to surrender possession of the property. Laws of 1897, chap. 418, art. VI, § 73. These charges the plaintiff refused to pay, and in either aspect of the ease it could not recover, and the judgment for defendants must be affirmed.

Andrews, P. J., and Blanchard, J., concur.

Judgment affirmed, with costs.