188 Misc. 281 | N.Y. Sup. Ct. | 1946
This proceeding is brought pursuant to section 696 of the Civil Practice Act, to determine the title to personal property levied upon by the Sheriff of Nassau County under an execution upon a judgment recovered by petitioner. The third party claimants, named as respondents in this proceeding, have asserted a claim of title to the property levied upon, which is based on a voluntary surrender to them by the judgment debtor, antedating the sheriff’s levy, under the provisions of a chattel mortgage then in default.
The third party claimants-respondents urge as a preliminary objection that this court has no jurisdiction since petitioner’s
The petitioner alleges that the claim of title made by the third parties is invalid by reason of their failure to comply with sections 230 and 230-a of the Lien Law. This allegation is elaborated upon somewhat in petitioner’s supporting memorandum which urges, among other things, that the mortgage held by respondents is void as against petitioner because of a delay of seventeen days in filing subsequent to its execution. A delay in filing is sufficient to invalidate a chattel mortgage only where ‘ ‘ unreasonable and unnecessary ’ ’, which is “ a question of fact to be determined on the evidence in each case.” (Trimble v. Brown-Green Co., 105 Misc. 210, 213.) Clearly the resolution of this issue of fact, as well as others which have been raised, requires a trial upon the evidence.
Moreover, section 696 of the Civil Practice Act, enacted by chapter 352 of the Laws of 1936 in replacement of the old section 696 thereby repealed, has substituted for the former inquisition of the sheriff’s jury a hearing, either with or without a jury,
The matter will therefore be referred to Hon. Peter Schmuck, an Official Referee, to take proof and report with his opinion concerning the title to the property levied upon by the sheriff (Dunn v. Seidenschwarz, 173 Misc. 495, supra). Pending the coming in of his report, determination hereunder will be held in abeyance.