| N.Y. App. Div. | Jan 31, 1930
Plaintiff sues in replevin to recover certain electrical fixtures which it installed in premises 779-783 Fox street, Bronx, New York city, under a conditional sales contract entered into by plaintiff with the defendant Grubar Realty Corporation. It is alleged in the amended complaint that the fixtures were delivered on the premises 779 Fox street on or about August 12, 1927, and that the conditional bill of sale was filed in the office of the register of the county of Bronx on August 13, 1927. Plaintiff further alleges that the said fixtures were of the nature and so attached to the realty that they might be severed therefrom without material injury to the freehold; that the sum of $2,077.75, the value of said chattels, was demanded of the defendant Grubar Realty Corporation, and that payment was refused. The complaint also contains an allegation that prior to the commencement of the action demand was made of defendants for possession of said chattels, which demand was refused, and that defendants retained said chattels to plaintiff’s damage in the sum aforesaid.
The original complaint was dismissed on motion of defendant and leave granted to file an amended complaint which was done by plaintiff. The defendant, appellant, answered, counterclaiming for a cancellation of the conditional sales contract. An amended answer served by defendant realleged its counterclaim for the cancellation of the conditional sales contract. To this amended answer the plaintiff replied denying the ^allegations contained in
Upon this appeal from the order denying defendant’s motion the defendant urges three grounds for reversal, the first ground being that there was upon the real property in question a prior real estate mortgage which contained a statement that the mortgage covered fixtures attached or to be attached to the building, and that by reason of such provision the plaintiff is estopped from claiming any title under its conditional sales contract filed subsequent to said real estate mortgage. The second ground upon which appellant seeks reversal is that the conditional sales contract was not promptly filed, and that it was never refilled, in violation of section 64 of the Personal Property Law. As a further point, the appellant urges that no proper demand was ever made upon defendant for return of the chattels.
Considering these points in the inverse order mentioned, we think the complaint was entirely sufficient so far as the allegation of a demand for return of the chattels was concerned.
The second point urged by appellant, that there was no proper filing under section 64 of the Personal Property Law, presents a more serious question. The court below, in an opinion, held that the provisions of section 71 of the Personal Property Law which make the filing of a conditional bill óf sale valid for three years, was applicable to the situation here presented. The appellant contends that, under the provisions of section 80-j of the Personal Property Law, the provisions of section 71 were made applicable only outside the counties comprising the city of New York, of which the county of Bronx is one, and that section 64 of the Personal Property Law, which was repealed by chapter 642 of the Laws of 1922, was by the enactment of section 80-j restored so as to provide that all conditional sales contracts within the counties comprising the city of New York must be filed in order to be valid during one year from the time they were made and the validity of such filing extended by refiling within thirty days next preceding the expiration of each succeeding year. The justice who presided at Special Term, and upon whose opinion the order appealed from denying defendant’s motion was granted, held that the real purpose of section 80-j was not to engraft an amendment upon section 71 so as to except the application of said section to New York city. The court suggested in its opinion that had the Legislature intended to restrict section 71 to the territory outside New York city it would have plainly said so. The court below was of the opinion, and we think correctly, that after section 64 had been repealed by chapter 642 of the Laws of 1922, it was discovered that the provisions
The first ground upon which the appellant asks reversal is that at the time of the execution of the conditional contract of sale of the fixtures in question there was a prior real estate mortgage upon the land containing a provision that the mortgage was applicable to fixtures then attached or thereafter to be attached to the building, and that, therefore, the moment the plaintiff’s fixtures were attached to the building they were covered by the mortgage in question. We do not think there is any force in that position. It seems absurd to claim that a mortgagor of real property could give a mortgage of personal property not in existence and to which he had no title. Undoubtedly he could mortgage all to which he at the time had title or which he might subsequently buy and pay for, .but we do not think it was within his power to mortgage property not. in existence or which he might at some future date acquire under a conditional sales contract. The fixtures in question, after the execution of the defendant’s mortgage, were acquired by the Grubar Realty Corporation under a conditional sales contract from the plaintiff, which contract was thereafter duly filed. The appellant relies strongly upon the case of Cohen v. 1165 Fulton Avenue Corporation (251 N.Y. 24" court="NY" date_filed="1929-05-28" href="https://app.midpage.ai/document/cohen-v-1165-fulton-avenue-corp-3617219?utm_source=webapp" opinion_id="3617219">251 N. Y. 24) as authority for his contention that where fixtures are sold under a conditional sales
We think there are issues which should only be disposed of at a trial, and that the order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent,
Dowling, P. J„, Martin, O’Malley and Proskauer, JJ„, concur.
Order affirmed, with ten dollars costs and disbursements.