17 N.Y.S. 307 | N.Y. Sup. Ct. | 1892
The plaintiff was a chattel mortgagee, and the defendant represents an execution creditor. There are two questions in the case: (1) Was the chattel mortgage void as to the creditor because the property was left in the hands of the mortgagor, and he was permitted to deal with it as his own? and (2) was the chattel mortgage void as to the creditor because it was not filed for four weeks after it was executed, the credit having been given before the execution of the mortgage? We think the former of these questions was correctly disposed of by the judge at the circuit. He submitted the question to the jury to say whether there was an agreement or understanding between the mortgagor and mortgagee, contemporaneous with the mortgage, that the mortgagor might so deal with the property; and the jury was instructed that, in the absence of such an agreement, the mortgage was not rendered void by the fact that the property was thus dealt with. The decisions on this question have been very conflicting, but the law must be regarded as settled, at present, in favor of the instruction thus given to the jury. Frost v. Warren, 42 N. Y. 204; Bank v. Koch, (N. Y. App.) 12 N. E. Rep. 9; Hangen v. Hachemeister, 114 N. Y. 566, 21 N. E. Rep. 1046; Brackett v. Harvey, 91 N. Y. 214; Hincks v. Field, (Sup.) 14 N. Y. Supp. 247. And so the question whether such agreement existed was left to the jury upon a conflict between direct and circumstantial evidence, and the verdict for the plaintiff upon that issue cannot be disturbed.
The other question propounded above arises under the statute of 1833, (Laws 1833, c. 279, § 1; 1 Birdseye’s St. p. 479, § 1,) which declares that every
The objection that the construction of the statute here upheld would render every chattel mortgage void as to all existing creditors of the mortgagor, because some time must necessarily elapse between the execution and the filing of the mortgage, is not conclusive. A reasonable application of the statute would require, in every case, a reasonable time in which to procure the mortgage to be filed; and what was such reasonable time would, no doubt, be a question for the jury, dependent upon the particular circumstances of each case. Such was always the rule in analogous cases under the earlier statute already considered. A reasonable time was given for the actual delivery of the property, during which the presumption of fraud did not arise. Lee v. Huntoon, 1 Hoff. Ch. 447; Randall v. Cook, 17 Wend, 53. The statute is a remedial one. It is directed against the evil of a fraudulent and secret transfer of property, to the prejudice of honest creditors. It should have application according to the full measure of the import of the language employed. The case in hand we regard as calling for such an application of the remedy provided. For the error above particularly specified the judgment should be reversed, and a new trial granted.
Judgment reversed, and a new trial granted, with costs to abide the event.
All concur.