Shaw v. Cooke

Appellate Division of the Supreme Court of New York

Shaw v. Cooke

111 A.D. 202, 97 N.Y.S. 235, 1906 N.Y. App. Div. LEXIS 129

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 8, 1906

StatusPublished

This text of 111 A.D. 202 (Shaw v. Cooke) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shaw v. Cooke, 111 A.D. 202, 97 N.Y.S. 235, 1906 N.Y. App. Div. LEXIS 129 (N.Y. Ct. App. 1906).

Pincite

Opinion

Per Curiam :

When the Culver mortgage was delivered to Jewell, the chattel mortgage was not surrendered. The fact that the Culver mortgage was an actual lien upon less land than was understood and was, therefore, of less value did not come to the knowledge of the defendant, as the assignee of Jewell, until about the time of the foreclosure. Upon his representation of that fact to the plaintiff the plaintiff recognized the chattel mortgage as an existing liability and agreed to pay the balance thereof, over and above the proceeds of the Culver mortgage, and requested the foreclosure of the Culver mortgage. Under such circumstances it is wholly unnecessary to return the Culver mortgage. Upon the evidence we are of opinion that the Culver mortgage was riot in fact substituted by the parties for the chattel mortgage, and, therefore, that the chattel mortgage was still a lien upon the property purchased by the plaintiff.

The judgment should, therefore, be reversed upon the law and facts and a new trial granted, with costs to appellant to abide event.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.

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Per Curiam :

When the Culver mortgage was delivered to Jewell, the chattel mortgage was not surrendered. The fact that the Culver mortgage was an actual lien upon less land than was understood and was, therefore, of less value did not come to the knowledge of the defendant, as the assignee of Jewell, until about the time of the foreclosure. Upon his representation of that fact to the plaintiff the plaintiff recognized the chattel mortgage as an existing liability and agreed to pay the balance thereof, over and above the proceeds of the Culver mortgage, and requested the foreclosure of the Culver mortgage. Under such circumstances it is wholly unnecessary to return the Culver mortgage. Upon the evidence we are of opinion that the Culver mortgage was riot in fact substituted by the parties for the chattel mortgage, and, therefore, that the chattel mortgage was still a lien upon the property purchased by the plaintiff.

The judgment should, therefore, be reversed upon the law and facts and a new trial granted, with costs to appellant to abide event.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.

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Bluebook (online)

111 A.D. 202, 97 N.Y.S. 235, 1906 N.Y. App. Div. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-cooke-nyappdiv-1906.