Murphy v. Luverne Realty Corp.

235 A.D. 874

Opinion

Judgment, in so far as appealed from, reversed on the law and the facts and a new trial granted, costs to abide the event. The burden was upon the plaintiffs to allege and prove that the Title Guarantee and Trust Company was a purchaser for value without notice of Cohen’s reservation of title, so far as concerns the chattels severable without material injury to the freehold. This requires not only pleading and proof that the conditional sales agreement had not been filed on January 14, 1927, the day the title company made its advance under the mortgage, but also that it did not have actual notice of such reservation of title. (Boriskin v. Toll Realty & Const. Co., Inc., 225 App. Div. 695; Hobart Holding Co., Inc., v. Fortwell Realty Corporation, 232 id. 689.) Findings and conclusions inconsistent herewith are reversed. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur. Settle order on notice.