5 F.2d 157 (2nd Cir. 1925), 229, Cornelius v. C.C. Pictures, Inc.

Docket Nº:229.
Citation:5 F.2d 157
Case Date:January 05, 1925
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 157

5 F.2d 157 (2nd Cir. 1925)




No. 229.

United States Court of Appeals, Second Circuit.

January 5, 1925

Page 158

Mark Eisner, of New York City (Irwin M. Berliner, of New York City, of counsel), for Wener.

Wing & Russell, of New York City (Burt D. Whedon, of New York City, of counsel), for receivers.

This case was here before in 297 F. 444. We there affirmed an order denying the motion of Wener to sell certain property said to be in the possession of the receivers appointed under this creditor's bill. Under the mandate thereafter issued, Wener, however, was permitted to take evidence in support of his petition in order to show if he could that he held an enforceable mortgage given by the defendant herein and covering a large quantity of cinema negatives.

This he proceeded to do, and showed (what had not been proven when the case was here before) that defendant company owned said cinema negatives, which were stored with a concern doing an independent business, i.e., the Evans Company. This storage was necessary because such negatives are highly inflammable, and Evans Company had lawful conveniences for storing them, which the defendant herein had not.

Furthermore it was the business of Evans Company to make prints from these negatives, and it had apparently done so, upon orders given by defendant herein, and received pay for so doing. A formal instrument of mortgage was executed by defendant and delivered to Wener. A copy of said mortgage was filed with Evans Company, and that concern was fully advised of the transaction between Wener and defendant, and informed that thereafter no prints should be made by it from the negatives except as ordered and to the extent of order by Wener.

Thereupon Evans Company entered in its own records the fact that these negatives were 'to be released on order of J. Wener only.'

But Wener never filed for record his aforesaid mortgage.

On these facts the court below held that under section 230 of the New York Lien Law (Consol. Laws N.Y. c. 33) the hypothecation to Wener was a mortgage of goods and chattels, and that it had been accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged, i.e., the negatives aforesaid.

Wener's mortgage was therefore upheld as against the receivers in equity and they took...

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