4 F.2d 159 | D.N.J. | 1924
The Press Printers and Publishers, Ine., a Morris-town concern, and incorporated under New Jersey laws, was engaged in the newspaper and job printing business, when on January 30, 1923, an involuntary petition in bankruptcy was filed. Tbe company was thereafter adjudicated a bankrupt, and a receiver appointed, who qualified and took control of the estate. This matter was referred to Referee De Coster, who made an order in which, among other things, he directed the present petitioner to show cause why the personal property of the bankrupt should not he sold “free 'and clear of all liens and incumbrances; a lien, if any, to attach to the proceeds.”
Upon the return of said order, the referee, after argument, determined and by his further order directed said sale to bo held, providing therein that a lion, if any, should attach to the proceeds. Pursuant thereto the sale was duly held and confirmed, and the referee designated as claims entitled to priority that of the landlord, one jfor labor, that of the Mergenthalcr Linotype Company, and of Nathaniel C. Toms, trustee.
The present petition is not for the review of the referee’s order, hut for the issuance of a writ of mandamus to compel the payment of the Babcock claim. In other words, the petitioner, for all practical purposes, is seeking to substitute the writ of mandamus for a writ of error, and in so doing has, I believe, mistaken the nature of his proper remedy. “A mandamus cannot be used as a writ of error; nor is it ever granted where the party asking it has another remedy, as where the remedy is by an appeal.” Morrison v. U. S. District Court, 147 U. S. 14, 13 S. Ct. 246, 37 L. Ed. 60. See, also, In re Baltimore & Ohio R. R., 108 U. S. 566, 2 S. Ct. 876, 27 L. Ed. 812.
The instrument in question bears the name of lease, but an examination of its contents convinces me that in reality it is a conditional sale agreement and therefore subject to the provisions of the Conditional Sales Act (P. L. N. J. 1919, p. 461). Paragraph 3, subd. 2, of said act, describes one sort of conditional sale as being “any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become * * * tbe owner of such goods upon full compliance with the terms of the contract.”
As I read the so-called lease, it answers the requirements of the above description, and must therefore bo classed as a conditional bill of sale. See In re Morris (D. C.) 156 E. 597; Lauter Co. v. Isenreath, 77 N. J. Law, 324, 72 A. 56.
As a conditional sale agreement, the instrument further becomes subject to the provisions of the law regulating the filing thereof. In the first place, the petitioner seemingly recognized that its instrument was not a lease, despite its name, and recorded it as a chattel mortgage.
Secondly, the act governing conditional sales provides that the agreement must in the first instance be filed within 10 days and refiled at the expiration of 3 years. The plain tiff omitted to carry either of these provisions into effect. Having failed properly to record its conditional sale agreement, I am of the opinion that the plaintiff, has forfeited the preferential position which might otherwise have obtained, and that its instrument is void for any such purpose as
Without going into any other point advanced by counsel, it appears to me that the above facts constitute such a situation as to have warranted the referee in making the order which the plaintiff seeks to annul by means of its petition for the issuance of a writ of mandamus.
The motion herein for such writ must be denied.