52 N.Y.S. 750 | N.Y. App. Div. | 1898
The action is to recover damages for the wrongful taking and conversion of personal property belonging to the plaintiff-. The defendant justified under a chattel mortgage. One Henry Harris originally owned the property in dispute. He executed four mortgages, the first in priority being that given to the defendant. This mortgage was filed on October 21, 1895, and a renewal thereof on October 20, 1896, but not thereafter. On July 15, 1896, under a foreclosure of the other mortgages, the title to the property became vested in Antone Dubeski, and was subsequently transferred by him to his wife, Bertha Dubeski. On December 14,1897, Bertha Dubeski sold the property to the plaintiff. Afterwards the defendant seized the property under his chattel mortgage.
As Bertha Dubeski acquired title to'the property before the time when it was necessary by the statute to refile. the defendant’s mortgage her title was not increased or the property relieved from the lien of the mortgage by the defendant’s failure to refile the mortgage. (Meech v. Patchin, 14 N. Y. 71.) But at the time that the plaintiff bought from Bertha Dubeski, the defendant was in default in failing to refile the mortgage, and the plaintiff, being a purchaser in good faith, acquired an- absolute and unincumbered title to the property, although that of her vendor was subject to the mortgage. (Dillingham v. Bolt, 37 N. Y, 198.)
On October 20, 1896, the property was in possession of a tenant of Mrs. Dubeski. It appears that at this time the defendant’s attorney made a demand upon the tenant for the possession of the property and left a written; notice that he had .taken possession of it. Still the property continued as; before in the actual possession of the tenant. This was not a sufficient change of possession to relieve the defendant from the provisions of the act of 1833 (Chap. 279),
The judgment appealed from should be affirmed, with costs.
All concurred, except Woodward, J., absent.
Judgment affirmed, with costs.
Chapter 418, Laws of 1897.— [Rep.
Chapter 417, Laws of 1897.— [Rep.