Hobart Holding Co. v. Fortwell Realty Corp.

232 A.D. 689 | N.Y. App. Div. | 1931

Judgment against the appellant reversed upon the law and the facts, with costs, and complaint as against the appellant dismissed, with costs. The appellant’s title to the first delivery of the refrigerators was fully protected by the filing of the conditional sales agreement as required by section 65 of the Personal Property Law,^* under which section the sale of the refrigerators belonged. (Madfes v. Beverly Development Corp., 251 N. Y. 12; Alf Holding Corp. v. American Stove Co., 253 id. 450.) The clause in the mortgage purporting to mortgage personal property thereafter attached or used in connection with the premises did not affect the conditional vendor’s rights under the delivery of the third lot. (Perfect Lighting F. Co., Inc., v. Grubar Realty Corp., 228 App. Div. 141, 144.) The findings that plaintiff was without knowledge or notice of the conditional sales agreement regarding the second delivery and which was filed three days after the making of the mortgage, are contrary to the evidence. The burden of establishing itself as a mortgagee in good faith or a purchaser for value was upon the plaintiff. (Kommel v. Herb-Gner Const. Co., Inc., 228 App. Div. 96; Boriskin v. Toll Realty & Const. Co., Inc., 225 id. 635.) The testimony of Aaron, who represented to the fullest extent all three mortgagees, establishes his knowledge of partial deliveries at a time when the law had been complied with as to the first delivery and also shows his utter failure to make any inquiry that would have informed him of the conditional vendor’s rights. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and appropriate conclusions will be made. Lazansky, P. J., Young, Kapper, Carswell and Seudder, JJ., concur. Settle order on notice.

* Added by Laws of 1922, chap. 642, known as the Uniform Conditional Sales Act.— [Rep.