Tchlenoff v. Jacobs

267 A.D. 908, 46 N.Y.S.2d 875, 1944 N.Y. App. Div. LEXIS 5454

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1944
• Status: Published

Opinion

Action to cancel a chattel mortgage, to declare plaintiff the owner of the chattels, and for other relief. Order granting defendants’ motion for summary judgment and denying plaintiff’s cross motion for summary judgment under rule 113 of the Rules of Civil Practice, and the judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. With the right to sell, and with plaintiff’s consent, the Universal Machine Tool Manufacturing Company, Incorporated, had possession of the chattels claimed to be owned by plaintiff. That company gave a mortgage on the property to defendants. The mortgage is void as against the creditors of Universal by reason of the failure to comply with the provisions of section 230-a of the Lien Law. The rights of the creditors are now vested in the trustee in bankruptcy of Universal and not in plaintiff. If it be deemed that the possession of Universal was that of a conditional vendee under the agreement between it and plaintiff, then under the Uniform Conditional Sales Act (Personal Property Law, § 69, amd. L. 1941, ch. 851) the defendants who took the mortgage are purchasers. (See definitions, Personal Property Law, § 156.) As against purchasers, the owner’s reservation of property is void. Present— Carswell, Acting P. J., Johnston, Adel, Lewis,and Aldrich, JJ. [See post, p. 987.]