30 N.Y.S. 556 | New York Court of Common Pleas | 1894
On behalf of creditors, plaintiff, a receiver in supplementary proceedings, challenges the validity of a chattel mortgage on the ground that it reserves to the mortgagor, not only the possession, but the “use,” of the things mortgaged. Of the things the use of which is permitted to the mortgagor, some are necessarily consumed by the use, e. g., “cash in hand,” for the restitution of which no provision is made; “paper, envelopes, stationery,” etc. As to these, indisputably, the mortgage is void. Hangen v. Hachemeister, 114 N. Y. 566, 21 N. E. 1046; Brackett v. Harvey, 91 N. Y. 214. And, if void in part, it is void in toto. Russell v. Winne, 37 N. Y. 591.
Assuming the mortgage invalid as to creditors, still the mortgagee contends that his title is unimpeachable, because he got possession and disposed of the goods in payment of his debt before the creditors were in a position to attack the mortgage. ' If the infirmity in the mortgage were merely that it was not accompanied by possession, then a supply of the defect before the lien of cred
