135 Misc. 158 | N.Y. Sup. Ct. | 1929
This is an action in replevin. It was tried at Trial Term by the court without a jury. The parties waived a jury and the making of findings and conclusions and consented that the court direct a verdict and judgment on the merits. The facts were agreed upon by written stipulation marked in evidence. (Plaintiff’s Exhibit 1.) Plaintiff claims that “ by stipulation this case has been removed from its common law aspects as a replevin suit and has been converted into an equity case in which the court is asked to amend all pleadings as required and render judgment without technicalities and upon the merits as they exist at the time of the decision of the Court.” No such stipulation is contained in plaintiff’s Exhibit 1 or elsewhere in the record. The complaint is clearly in replevin and alleges a wrongful detention of certain chattels set forth in the schedule attached to the complaint after due demand for possession by plaintiff of defendant. It was alleged in the complaint and agreed in the stipulation that the chattels had been sold by plaintiff, the then lawful "owner, to the owner of the real estate upon which defendant held a purchase-money mortgage. The stipulation (Plaintiff’s Exhibit 1 in paragraph 14) reads: “ Should the plaintiff recover a final judgment on the merits in the above action, the defendant will pay said judgment to the extent of -$1351.72 and interest thereon from September 1, 1928,
The stipulation of facts (Plaintiff’s Exhibit 1) shows that on January 6, 1928, defendant sold Viewrie Building Corporation, herein called the builder, a certain plot of real property and took
Defendant’s mortgage contained an agreement that it would be subordinated to the title company’s building loan agreement and mortgage, provided the mortgagor, within thirty days from date, commenced the erection of a six-story apartment house and continuously proceeded therewith. Under its provisions also the builder mortgaged to the mortgagee “ all fixtures and articles of personal property now or hereafter attached to, or used in connection with the premises, all of which are covered by this mortgage.” After the making of said mortgage of defendant the title company’s building loan agreement and bond and mortgage and defendant’s subordination agreement, and on May 3, 1928, the builder and plaintiff entered into the conditional sales agreement under which plaintiff was to supply to the. building the hardware (described in Schedule A of the complaint). This agreement was not put on file as required by statute until September, 1928. In the meantime, before such filing all the building loan advances, including the eighth above referred to, had been made to the builder by the title company. The last advance of $25,000 was made on August 16, 1928. At that time all of the chattels in question had been delivered by plaintiff and affixed by the builder to the realty and neither the title company nor the defendant had knowledge or notice of plaintiff’s conditional sales agreement.
Later, by reason of default of the builder, defendant by action foreclosed its mortgage and upon the sale, pursuant to the judgment
It was said in McCloskey v. Henderson, by Hiscock, Ch. J. (at p. 135): “ That [Title] Company advanced certain installments under its mortgages between the times when the plaintiff’s property was attached to the realty and the date when the conditional sale agreement was filed, as provided by statute, and there is no suggestion that it was otherwise chargeable, with- knowledge of the conditional character of plaintiff’s contract. * * * Under these circumstances in our opinion the Title Company as to its mortgages covering the installments which have been mentioned was plainly a bona fide incumbrancer under the statute; the lien of its mortgages covered the property affixed to the realty, and it would have been an act of waste for the plaintiff to tear out the same which the said Title Company could have forbidden and enjoined. (Kirk v. Crystal, 118 App. Div. 32; affd., 193 N. Y. 622; Schmaltz v. York Mfg. Co,, 204 Penn. St. 1.) * * * it was his [defendant’s] duty to the first mortgagee, the Title Company, to refrain from committing waste himself and within certain limits to preserve the property from waste and destruction by other causes. As such he had a perfect right and an undoubted duty to refuse to aid plaintiff in his unlawful purposes by helping to detach and deliver to him the property in question. He would have made himself personally liable for waste if he had done otherwise than he did. (Barnett v. Nelson, 54 Ia. 41; Turner v. Johnson, 95 Mo. 431, 438; Miller v. Ward, 111 Me. 134; Benham v. Rowe, 2 Cal. 387; Shaeffer v. Chambers, 6 N. J. Eq. 548; Morse v. Whitcher, 64 N. H. 590; Place v. Sawtell, 142 Mass. 477.) ”
This action is one for a wrongful detention of property and plaintiff has not established its right to the possession of same. On the contrary, defendant can and did establish its right to posses
Verdict is, accordingly, directed for defendant and judgment directed dismissing plaintiff’s complaint on the merits. Plaintiff may have exception, thirty days’ stay of execution and sixty days to make case on appeal.