93 N.Y.S. 460 | N.Y. App. Div. | 1905
The judgment should be affirmed, with costs. The action was brought to establish and enforce a lien upon personal property. The facts appearing from the record are, in brief: That the Skilton firm, October 4, 1897, sold and delivered to the defendant Barron a stock of goods at the agreed price of $6,000, of which $2,000 was paid down, $1,500 was paid by an accepted order, and the remaining $2,500 was put in a note made by Barron, dated that day, and payable to the Skiltons, at Geneva National Bank, five years from date, with interest semiannually, with privilege of paying any part of principal, in sums of not less than $200, on any interest day. An agreement in writing was made at the time by the parties, wherein, among other things, it was agreed that the Skiltons should have a lien, as security for the payment of the $2,500 note, upon the property sold, and all other personal property which Barron might put in the business; that Barron might sell and dispose of the property, and apply the procéeds to the payment of the note; and that he would so apply such proceeds, except what was necessary for the expenses of the business, or to replenish or increase the stock, and in such case the substituted stock should take the place of that sold, and no part of the proceeds of sales should be otherwise used or disposed of, and he should keep the stock replenished, renewed, and of the value equal to that at the time the sale was made by the Skiltons to Barron. There were also provisions in the agreement for the foreclosure •of the lien, if necessary. Barron took possession of the stock, and conducted the business pursuant to the agreement, and paid the interest on the note down to April 4, 1902. The agreement was
Some things involved in this appeal were decided when the case was here upon the demurrer to the complaint, and must therefore be regarded as settled, so far as this court is concerned.
1. The agreement or chattel mortgage was not invalid, as matter of law, by reason of its provisions as to the sale of the property by the mortgagor. The evidence now supports the findings of fact. The judgment involves a finding that the agreement is valid, and that finding will not be disturbed.
2. The neglect to file the agreement for nearly five years did not affect its validity between the parties themselves. It would only be invalid as to creditors whose debts existed before the filing. And even they could not attack it until they had, by judgment and execution, obtained a specific lien upon the property covered by the agreement. It now appears that some of the creditors represented by the trustee in bankruptcy had claims arising before the filing of the agreement, but none of them have acquired specific liens by judgment and execution, as above. One creditor had a judgment, but no execution.
3. The trustee, under the provisions of the bankrupt law, possessed no greater rights than the creditors themselves had to attack the agreement; and, as the creditors had no such rights when the adjudication in bankruptcy was had, the trustee’s attack must fail.
Counsel reargue some of these propositions now, but we decline to reconsider them. They can only be considered on appeal from our decision herein.
The question of jurisdiction of the state court to entertain and decide the case was, of course, involved in the former appeal. It appears to hive been practically abandoned there by the trustee, and little consideration was given to it by us. It is too late now to ask us to take it up.
We think that the indorsement by the referee in bankruptcy upon the plaintiff’s claim of the words, “Disallowed as a preferred claim,” was not, under the circumstances, an adjudication of the invalidity of the lien, so as to bar the trial and determination of that question in this action. No evidence was taken, no order made; and the referee, on the same day he made this indorsement, January 9, 1903, made the order for the sale of the property, and the setting apart of the $2,600 fund for the benefit of any lien that might thereafter be established by plaintiff. The language was general, as to all liens, but concededly this was the only lien claim
There are no other questions calling for consideration by us.
We conclude the judgment should be affirmed, as hereinbefore suggested. All concur.
Judgment affirmed, with costa.