Willcox v. Perez

115 A.D. 693, 101 N.Y.S. 391, 1906 N.Y. App. Div. LEXIS 3048

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1906
• Status: Published

Opinion

Gaynor, J. :

This is not an action on the chattel mortgage, but for a deficiency thereon after foreclosure and sale. Therefore section 139 of the Municipal Court Act,

* that no action shall be brought in that court on a chattel mortgage “ made to secure the purchase price of chattels ” does not apply. It is true- that there is the usual provision in the mortgage that the mortgagor shall be liable for such deficiency, but that is not what makes him liable; he would be liable if there were no such provision ; his liability arises as matter of law out of the foreclosure, and that is the foundation of this action. The reason of the statute does not apply.

The judgment should be affirmed.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs. '

Laws of 1902, chap. 580.— [Rep.