89 N.Y.S. 52 | N.Y. App. Div. | 1904
The inference is to my mind irresistible that these papers were executed simply to give security to Oliver for the moneys owing. That in legal effect constituted a chattel mortgage which was void as against the plaintiff because not filed. Although the bill of sale was signed and delivered upon November ninth the mortgage and note, which were to be replaced thereby, were not surrendered until-the twelfth, at which time the defendant assumed to take possession of the property and upon which date this lease was executed. The bill of sale, therefore, and the lease must be construed together to determine the legal effect of the transaction.
These papers were but a substitute for a note and chattel mortgage already held by defendant, which, chattel mortgage Dickson had requested should not be filed. Dickson retained actual possession. All of the property purchased was leased by Oliver to Dickson for $42, the exact amount of the legal interest upon the $700 owing by Dickson to Oliver. The right of repurchase was there
The respondent insists that the appellant is hot entitled to raise this, question on. appeal because no motion for a directed verdict was made at the trial, and no exception was taken to the charge, of the court submitting the question to the jury. That the appellant may raise
All concurred, except Parker, P. J., and Houghton, J. dissenting..
Judgment and order reversed and new trial granted, with costs to appellant to abide event.