125 N.Y.S. 410 | N.Y. App. Div. | 1910
Appeal from an order sustaining plaintiff’s demurrer to the separate defense contained in the amended answer interposed by the defendant the Coleman Stable Company.
This action was brought to recover possession of certain chattels, consisting of an automobile with its appurtenances, upon allegations of ownership thereto in the plaintiff on January 19, 1910, which ownership was acquired through a chattel mortgage executed and delivered on November 18, 1909, by the Coleman Stable Company to Katherine Percival, to secure the payment of $1,250, with a clause in the mortgage allowing Katherine Percival or her assigns to take possession of the property therein described upon default in payment of any installment therein provided for; that the mortgage was duly filed, and that thereafter Katherine Percival duly sold, assigned and transferred the mortgage and all interest therein to the plaintiff, which assignment was also duly filed; that default was made by the Coleman Stable Company in the payment of one of the installments provided for in said mortgage. The separate defense of the defendant- Coleman Stable Company, which was demurred to, sets forth that it was a domestic stock corporation ; that the mortgage in question was not a purchase-money mortgage, and was not given in payment either in whole or in part of the chattels, or any of them therein described; that the alleged mort
It is not disputed that the facts set forth in the separate defense, if proved, would render the mortgage invalid. (Stock Corp. Law [Consol. Laws, chap. 59; Laws of 1909, chap. 61], § 6.)
In order to take advantage of the invalidity of a mortgage, executed without the statutory requirements having been observed, it is not necessary that the objection should be raised by a stockholder or creditor, but the defense is available to the corporation itself. (Lord v. Yonkers Fuel Gas Co., 99 N. Y. 547.) It was furthermore claimed that the defendant corporation could not set up this defense, because no man can take advantage of his own wrong, and because defendant did not offer to return wdiat it had received from the mortgagee upon the making of the mortgage. This seems to proceed upon the theory of an application of some equitable principle to the case at bar which has absolutely no relevancy, either to the cause of action sued upon or to the defense
The order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion for judgment sustaining the demurrer to the separate defense denied, with ten dollars costs.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.