157 N.Y.S. 696 | N.Y. App. Div. | 1916
Defendant is indebted to plaintiff in the sum of $950 and interest, for which plaintiff has recovered judgment. In March, 1914, defendant was also indebted to Grace Cleary in the sum of $500, to secure payment of which he gave her a chattel mortgage upon certain personal property. In April, 1914, Grace Oleary assigned to plaintiff the said chattel mortgage and the moneys due or to grow due thereunder as “ collateral security ” for the payment of defendant’s indebtedness of $950 to plaintiff. Neither debt having been paid at maturity, plaintiff now seeks to replevy the mortgaged chattels, claiming an absolute ownership thereof by virtue of the chattel mortgage and the default in payment.
If the assignment had been to plaintiff absolutely, as to a purchaser, this claim would be well founded, but it is generally held that an assignment of a chattel mortgage, as the present one was assigned, merely as “collateral security” for a debt other than that covered by the mortgage itself, amounts to a pledge of the mortgage, and invests the pledgee with only a special property in the chattels mortgaged. (Jones Chat. Mort. [5th ed.] § 5a; Haskins v. Kelly, 1 Abb. Pr. [N. S.] 63; Mitchell v. Roberts, 17 Fed. Rep. 776.) Indeed plaintiff itself seems to have understood that it held the mortgage only by way of pledge, for when it became necessary to extend the mortgage, and to make and file a certificate for that purpose, the plaintiff stated in said certificate: “That the interest of
In our opinion exact justice will be done if the alternative money judgment be reduced to the amount for which the mortgage was given with interest. Defendant urges upon this appeal certain technical objections to the admission in evidence of some of the documentary proof. The record shows that the precise objection now urged was not brought to the attention of the trial justice. If it had been, the defect in proof could have been easily met. It is too late to raise such an objection for the first time on appeal. The determination of the Appellate Term and the judgment and order appealed from will, therefore, be reversed and a new trial granted, with costs to appellant to abide the event, unless plaintiff shall stipulate to modify the judgment by reducing the amount which plaintiff is to recover from defendant in case the possession of the mortgaged chattels is not returned to plaintiff to
Clarke, P. J., Dowling, Smith and Davis, JJ., concurred.
Determination and judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as stated in opinion; in which event, judgment as so modified and order affirmed, without costs. Order to he settled on notice.