246 F. 874 | E.D.N.Y | 1917
This is an application for payment of a chattel mortgage from the proceeds of sale of the estate, including
The direction that the copy be filed “in the same office where the original mortgage or a copy thereof was filed” evidently caused some discussion. The mortgagee claims that the original provision was not in the plural, and that the refiling might be in either one or the other of these offices. No reason has been shown for such an interpretation. The provision was plainly one in addition to that requiring refiling in the county of residence, but the amendment has removed the question, if it existed.
The mortgage, which was filed during office hours upon February 16, 1916, would be good for one year, reckoning from the “time” of that filing. This would include a part, at least, of February 16, 1917, and under all rules of construction would go beyond the end of February 15, 1917. For all usual purposes it would include the whole of the 16th. Hence 30 days immediately preceding the expiration of such term could be computed by counting the 16th of February as the first of said 30 days. This would give all of the 18th of January as the 30th day preceding.
The statute says, “within 30 days next preceding the expiration.” If we take the “next” 30 days preceding the date of expiration, we would include only the 17th of January as the 30th day. Again, if we count back from the hour, i. e., “the time” of filing, we also run into the 17th, and all of that calendar day would be available. To give the mortgagee by construction a part of a day over “one year,” on the theory that the law does not take into account the parts of a day, and then to penalize him by including that part of a day to fill up the 30-
It has been repeatedly held that this section must be construed strictly, and that a renewal filed prior to the 30-day period is invalid. Industrial Loan Ass’n v. Saul, 34 Misc. Rep. 188, 68 N. Y. Supp. 837; Newell v. Warner, 44 Barb, (N. Y.) 258; Nat. Bank of Metro. v. Sprague, 20 N. J. Eq. 13. A strict interpretation does not mean that the law must shorten the period by a forced construction, but- one day too much is as great an evasion of the statute as a longer lapse from the prescribed term. Hence a filing on January 16th would be invalid, if that were the sole criterion. But the law says that the mortgage must be filed in two places, and must be renewed within 30 days preceding the expiration of one year after the first filing. The refiling must be in both offices.
The original filing was therefore valid, and the motion must be granted.