30 Barb. 485 | N.Y. Sup. Ct. | 1859
This is an appeal from a judgment rendered in the city court of Brooklyn. The action was brought for the recovery and delivery of personal property which originally belonged to one Benjamin Rathbun, proprietor of the Globe Hotel, Brooklyn. The parties, plaintiff and
So far as the parties to this action are concerned, the plaintiff suffers no detriment from the omission to renew his mortgage by re-filing the same with a statement of the amount due, within the 30 days before the expiration of the year from the filing thereof. The defendant’s mortgage was given and filed withm the year after the giving and filing of the plaintiff’s, and he therefore had due notice of the plaintiff’s lien. The case of Méech and another v. Patchin, (4 Kern. 71,) determines that the term “subsequent,” in the 3d section of the act requiring mortgages of personal property to be filed, &c. (Laws of 1833, p. 402,) means after the time of re-filing has elapsed.
The chattels in question were a part of the furniture of the Globe Hotel, of which the defendant was the owner, and one Horatio P. Carr was the tenant. Carr testified that the defendant-had given him possession of the house and furniture with strict instructions not to let any thing go; not to let Mr. Bathbun or any one else take any thing from the hotel, because it was assigned to him. Michael Carey, a witness for the plaintiff, testified : “He was in the employ of the plaintiff ; went to the Globe Hotel with a copy of the mortgage, at the ..plaintiff’s request; saw Mr. Wheeler and Mr. Carr
The defendant asked the judge to charge the jury that, if they believed Oarr was in the actual possession, this action could not be maintained. The judge declined, and the defendant excepted. The court had just charged the converse of this proposition, and told them that if they believed the evidence to which I have referred, they were at liberty to find the defendant had such a legal possession as would enable the plaintiff to maintain the action. After this explicit direction, the defendant should have limited his request to the time when the plaintiff’s agent made the demand, and the defendant the refusal, because, up to that time, as I have already said, the actual possession may have been in Carr, and still the plaintiff entitled to recover. Carr, at that time, was not the owner, but held the property for the defendant.
The judgment should be affirmed.
Lott, Emott and Brown, Justices.]