30 N.Y.S. 718 | N.Y. Sup. Ct. | 1894
This action was originally brought in the municipal court of the city of Rochester for the conversion of personal property. A judgment having been rendered in that court in favor of the plaintiff, an appeal was taken to the county court, where the action was again tried, and resulted in a judgment in favor of the plaintiff, from which this appeal was taken.
One William E. Weeks, being indebted to the Commercial National Bank of Rochester in the sum of $521.91 for money theretofore loaned to him by the bank, for the purpose of obtaining an extension of the time of payment of said indebtedness he gave to said bank his promissory note, dated February 17,1890, for said sum, payable November 18, 1890, and on the same day he gave to the bank his chattel mortgage upon the property in question as collateral security for the payment of said note. The note was paid only in part, and Weeks gave him his note for $348.58, that being the balance unpaid. This latter note was renewed from time to time until the 11th day of September, 1892, when Weeks gave to the bank his note for $380. $350.50 of this sum was part of the original indebtedness to the bank, which was secured by the note and chattel mortgage. The mortgage was duly filed on the 20th day of February, 1890. It was refiled on the 17th day of February, 1891. It was never thereafter refiled. The plaintiff succeeded to all the property rights of the said Commercial Bank, becoming thereby the owner of said promissory note and the chattel mortgage, and on the 10th day of January, 1893, the note and mortgage being due and wholly unpaid, plaintiff took possession of the mortgaged property by virtue of the terms and conditions of the mortgage. On the 25tli day of January, 1893, Mrs. Elizabeth Hawes recovered a judgment in the supreme court of the state of New York against Jennie M. Weeks for the sum of $2,516.13, and on the same day she caused to be issued to the defendant, as sheriff of Monroe county, an execution thereon, and the defendant on the following day, but at a time subsequent to the time the plaintiff took possession of the said mortgaged property under its mortgage, levied upon and took the property from the plaintiff’s possession, and sold the same at auction as the property of Mrs. Weeks. It is the contention of the defendant that the property at the time of the levy belonged to the judgment debtor, Mrs. Weeks; that the bank mortgage being given to secure the payment of the original note of $521, it was not a continuing security for the notes given in renewal thereof; and further, that the bank mortgage ceased to be a lien on the property as against the judgment because of the failure to refile the same. It is provided by chapter 279 of the Laws of 1833, as amended by chapter 418 of the Laws of 1879, that every mortgage of goods and chattels “filed in pursuance of the act shall cease to be valid as against the cred