Coiro v. Baron

143 N.Y.S. 853 | N.Y. App. Div. | 1913

Per Curiam:

This proceeding to foreclose a chattel mortgage after default alleged a demand for payment and averred that the mortgaged chattels were in the possession of the defendant Baron. The affidavit for the warrant of seizure did not attempt to state any of the grounds for an attachment. A warrant of seizure issued reciting the value of the chattels, and that a cause of action, as specified in section 1737 of the Code of Civil Procedure (now Lien Law, § 206), existed in favor of the plaintiff, who had given the requisite undertaking. After the chattels had been taken under the warrant a motion was made on behalf of the Inn Corporation, defendant, to vacate because the warrant and the papers on which it was granted did not set forth the matters required by section 636 of the Code of Civil Procedure. This motion was denied. Defendant has appealed from the order denying its application to vacate the warrant of seizure, and cites Faraci v. Maller (154 App. Div. 303).

The decision, of Farad v. Maller (supra) was made without the court’s attention having been called to the previous holding by this court in Wuertz v. Braun (113 App. Div. 459) that a warrant of seizure under the Code of Civil Procedure (§ 1738) is justified if the plaintiff is out of possession, and that the legislative reference to attachment is merely to provide a definite procedure, and did not impose, in addition to non-possession, a further condition before obtaining the warrant of seizure, (Blake v. Crowley, 44 Hun, 344.) Section 1738 of the Code is now re-enacted without change as section 207 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38). The course of legislation to protect liens upon chattels (Laws of 1869, chap. 738; Throop Code Civ. Proc. [Ed. 1880] § 1738, p. 112, note) manifests a clear intent to give the remedy of seizure to lienors so as to recover possession, and not to restrict the right to seize the chattels pledged or under a hen — a right vital to the lienor’s security — to those grounds that are requisite for an attachment against the general property of the debtor. The case of Faraci v. Maller is, therefore, overruled, and that of Wuertz v. Braun is now followed, and reaffirmed. -The order refusing to vacate the seizure is, therefore, affirmed, but without costs.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Order affirmed, without costs.