20 N.Y.S. 177 | N.Y. Sup. Ct. | 1892
This action was replevin. The plaintiffs claim title to, and! the right of possession of, the property in question under and by virtue of a. chattel mortgage executed and delivered to them by James Thurlow, Jr. The-defendants claim to have a special property in the goods and the right of possession under and by virtue of levies made thereon under executions in their hands against Thurlow. The defendant Johnson was sheriff of Onondaga, county, and Wilson was a constable of the town of Skaneateles. On March 10,1890, to secure the payment of a debt of $400, Thurlow made and delivered to the plaintiffs a chattel mortgage on certain personal property, consisting of goods and fixtures, in what was known as the “Brick Store,” and also on certain other goods and fixtures in a saloon, both of which were in the village of Mottville. At that time Thurlow resided, and the property in question was. located, in the town of Skaneateles. On March 10th the plaintiffs’ mortgage was sent by mail from Syracuse to George Barrow, Esq., at Skaneateles, to-have it filed in the office of the town clerk of that town. It was received by ■ Barrow in the forenoon of March 11th. He went to the office of the town-clerk at about 12 o’clock m., and about 4 o’clock p. m., and on both occasions found the office closed. At half past 7 o’clock p. m. he again went to t lie-clerk’s office, found it open, but no one present. He then placed the plaintiffs* mortgage on a desk- in the office of the clerk, with his fees for filing, and left.the following memorandum on the face of the paper: “File for George Barrow. ” There was no evidence that the mortgage came to the notice of the town clerk until the next morning at about 8 o’clock, when he took ife
The most important question in this case relates to the filing of the plaintiffs’ chattel mortgage. That it did not in fact come to the hands of the «clerk until after both defendants had made their levies upon the property in •question is not denied. If it was not filed until the clerk actually received at and made the indorsement required, it seems to be conceded by all that the judgments appealed from were proper, unless the judgments confessed, and under which the defendant Wilson levied, were void. The latter ques-tion will be separately considered. Hence the precise question we are to consider first is whether the attempt of the plaintiffs to have their mortgage filed «amounted to a filing within the requirements of the statute. Laws 1833, c. 279, § 2. While it has been held that it was not a sufficient filing of a chattel mortgage to deliver it to the town clerk when absent from his office, although he indorsed the same as filed when he received it, (Hathaway v. Howell, 54 N. Y. 97,) and that, if there be no clerk, or if he be absent, the mortgage may be filed with the «person in charge of the office, (Bishop v. Cook, 13 Barb. 326; Dodge v. Potter, 18 Barb. 193,) still we have been cited to no case, and have found none, that would justify us in holding that an unsuccessful attempt to file a chattel mortgage when the office was closed, -or depositing a mortgage on the clerk’s table in tbé office when no one was present, would constitute a filing within the requirements of the statute. "The statute requires clferks to file all chattel mortgages that are presented to them for that purpose, and enter thereon the time of receiving the same, and to deposit them in their office for inspection. To constitute a proper filing requires the act of the clerk or some person in charge of the office. To hold •that an unsuccessful attempt to enter the office, or the leaving of a paper :therein, constitutes a filing, is not, we think, justified by the statute. A •chattel mortgage is filed within the meaning of the statute when it is deliv•sered to, received, and kept by the proper officer, or some one in charge of the -office, for the purpose of the notice the statute intended should be given. 7 Amer. & Eng. Enc. Law, 961; Mill Co. v. Warder, 42 Minn. 117, 43 N. W. Rep. 791. We think the court properly held that the plaintiffs’ mortgage jwas not filed until received by the clerk.
'This leads us to the consideration of the question of the validity of the .^judgments confessed, and, if invalid, whether such invalidity affects the parities to this action. The Code of Civil Procedure, § 3011, provides that where • .a judgment, confessed before a justice of the peace, is for a sum exceeding :-$50, the confession must be accompanied with an affidavit of the defendant mnd plaintiff that the defendant is honestly and justly indebted to the plain•.tiff in the sum specified therein over and above all just demands which the -..defendant has against the plaintiff, and that the confession is not made or taken with intent to defraud any creditor. The affidavits accompanying the confessions involved in this case all omitted the words “or taken,” so that r-the affidavits were simply that the confessions were not made with intent to i defraud. We are disposed to think the omission may be fatal to the validity ■ -of :fche judgments confessed, except as against a purchaser in good faitli of "property thereunder and the defendant making the confession. Code, § 3012. Assuming that the judgments confessed were invalid except as to the defend
Judgments and order affirmed, with costs. All concur.