Nichols v. Potts, 35 Misc. 273

Nichols v. Potts

35 Misc. 273 | N.Y. App. Term. | 1901

Per Curiam.

In August, 1899, the plaintiff sold and delivered to one D. T. Atwood certain cabinet mantels under a conditional bill of sale, which provided in terms that the title to and property in the mantels should remain in the plaintiff until they were paid for. Atwood was a nonresident of the State of New York, and *274the hill of sale was‘duly filed in the. office of the register of Kings county on November 17, 1899. Under the provisions of the Lien Law (Laws of 1897, chap. 418, §§ 112, 113), the reservation pf ownership in the plaintiff was valid and effectual from the date of filing against all subsequent purchasers, pledgees or mortgagees in good faith. As to any mortgagee whose lien upon the real estate has attached before the conditional sale and delivery of the mantels, no claim could be asserted to the mantels, because, until paid for, they remained personal property and not a part of the realty. Duffus v. Howard Furnace Co., 8 App. Div. 567. It appears that at the time of the sale of the mantels the house in which they were placed was subject to- certain mortgages, one of which was afterwards foreclosed by the defendants, to whom it had been assigned, and the property sold to one Bacon, who, as it is claimed, acted merely as a dummy for the defendants. After the conveyance to Bacon, the plaintiff commenced this action for the replevin of the mantels, and they, and all except a small portion of the goods which entered into their construction, were taken and returned to the plaintiff. The defendants denied that any proper demand had been made upon them, or that they owned the mantels or had them in their possession or control, but alleged that they belonged to John Bacon, who is not a party to the action. The justice awarded judgment in favor of the defendants for a return of the property, or, in default thereof, for the payment of a sum which he fixed upon as the value. The evidence does not disclose when Atwood made the mortgage which was foreclosed. It seems to have been assumed upon the trial that it was made before the conditional sale and delivery of the mantels. If this is so, the mantels never fell under the lien of the mortgage, unless advances were made thereon after the delivery of the mantels and before the filing of the contract for sale. The learned justice seems to have based his decision in part upon the assumption that such advances had been made. We aré unable to find in the record any satisfactory evidence of the fact. The mortgage seems to have been made to one McLaughlin. It is not attached to the return and we are, therefore, not advised as to its contents. The only evidence touching advances is contained in the testimony of George Potts, one of the defendants, who said that he told the plaintiff’s agent, during the progress of the foreclosure suit, and before the filing of the contract of conditional *275sale, that “ the inspector had been through the houses several times recently inspecting the houses and he had made payments from the title company on these houses with the mantels being in, which he wouldn’t have made if the mantels had not been in the houses.” This falls very far short of competent evidence that any advances had been made, or, if they had, that they had been made under McLaughlin’s mortgage, for there is nothing in the evidence to connect McLaughlin with the title company, or any advances made by it. If the defendants desired to rest their defense upon the making of advances between the date of sale and the date of filing of the contract, they should have offered some competent evidence to show not only the fact of such advances, but also that they were made in ignorance of the continued title to the mantels in the plaintiff. Duffus v. Howard Furnace Co., supra, 573. Nor was the justice authorized in awarding to the defendants possession of- the property and damages for its withholding. Unless Bacon was their dummy, which they do not concede, there is nothing in the evidence to show any right of possession in them. Their whole defense is based upon the contention that Bacon, and not themselves, owned the property, and there is no evidence that he has ever conveyed it to them. . At the most the judgment should have gone no further than to dismiss the complaint, leaving the question of ownership, as between Bacon and the plaintiff, to be determined in an appropriate action. Nor was there any evidence of the value of the goods which were replevied. They did not include all that were sold, and there is nothing in the case to show the value of that portion which was not returned. I

Judgment reversed and new trial ordered, with costs to abide the event.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment reversed, new trial ordered, with costs to abide event.