Schutzbank v. Colonial Discount Co.

248 A.D. 828, 289 N.Y.S. 33, 1936 N.Y. App. Div. LEXIS 7516

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1936
• Status: Published

Opinion

Order denying, on reargument, defendant’s motion for judgment on the pleadings and awarding judgment to plaintiff, and the judgment entered thereon, reversed on the law, with ten dollars costs and disbursements, and defendant’s ■ motion granted to the extent of dismissing the complaint, with ten dollars costs. Defendant is the owner and holder of a chattel mortgage executed by the Wood-haven Motor Sales, Inc., covering a Plymouth automobile. The mortgage is dated | June 9, 1934, and was filed June 12, 1934. The automobile was delivered by the • Woodhaven corporation to one Schwartz on June 11, 1934, and on July first or ' second Schwartz sold it to one Goldfeder, who borrowed the purchase price from i plaintiff and executed a chattel mortgage to plaintiff to secure payment of the loan. This chattel mortgage is dated July 2, 1934, and was filed July 3, 1934. When Schwartz acquired title to or possession of the automobile on June 11, 1934, the ' consideration was not a present one but was money previously paid by him to Woodhaven. Under the circumstances Schwartz was not a purchaser in good faith within the meaning of section 230 of the Lien Law. (Button v. Rathbone, Sard & Co., 126 N. Y. 187.) In view of the fact that the defendant’s mortgage was executed on Saturday, June 9, 1934, and filed June 12, 1934, it cannot be said as matter of law that the delay in filing the defendant’s chattel mortgage was unreasonable. (Matter of Paramount Finishing Corp. [Sheckell], 234 App. Div. 891; affd., 259 N. Y. 558; Briggs v. Gelm, 122 App. Div. 102.) Johnston and Taylor, JJ., concur; Lazansky, P. J., concurs in result; Young and Carswell, JJ., dissent and vote to affirm.