Brunnemer v. Cook & Bernheimer Co.

• Decision Date: 30 December 1904
• Citation: 73 N.E. 19,180 N.Y. 188
• Parties: BRUNNEMER v. COOK & BERNHEIMER CO. et al.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 188

73 N.E. 19

BRUNNEMER

v.COOK & BERNHEIMER CO. et al.

Court of Appeals of New York.

Dec. 30, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by John Brunnemer, receiver of James M. Connelly, against the Cook & Bernheimer Company and others. From a judgment of the Appellate Division (85 N. Y. Supp. 954) affirming a judgment for plaintiff and defendant Entwistle, the Cook & Bernheimer Company and others appeal. Modified.

Moses Feltenstein, for appellants.

I. Henry Harris, for respondent Brunnemer.

Augustus J. Koehler, for respondent trustee.

PER CURIAM.

The plaintiff is the receiver of James M. Connelly, a judgment debtor, appointed in proceedings supplementary to executions issued on several judgments obtained against said Connelly. The appellant, the Cook & Bernheimer Company, was the holder of a chattel mortgage for the sum of $2,050, made by said Connelly, which covered the fixtures in his saloon. This mortgage, as found by the trial court, was not filed in the county where the mortgagor resided. Subsequently the appellant seized the mortgaged chattels, together with other property of the judgment debtor not covered by said mortgage, sold the same to satisfy the mortgage debt, and at such sale became the purchaser. The claims of the various creditors whom the plaintiff represents accrued prior to the mortgage sale, but judgments were not recovered on them until subsequent to the sale. The respondent defendant Entwistle is the trustee in bankruptcy of the estate of said Connelly, appointed as such subsequent to the mortgage sale, but prior to the recovery of the aforesaid judgments. The action originally was brought against the Cook & Bernheimer Company to compel that defendant to account to the plaintiff for the value of the mortgaged chattels on the ground that said mortgage was void as against the plaintiff's judgments because it was not properly filed. After the commencement of the action the trustee in bankruptcy, on his own application, and without opposition by the other parties, was made a party defendant thereto. He answered, making three claims against his codefendant: First, for the excess in value of the mortgaged chattels over the sum for which they were sold; second, for the value of the property seized by the appellant which was not included in its mortgage; third, for the value of a liquor tax certificate transferred by the bankrupt to the defendant in fraud of the bankruptcy act. The trial court found the value of the mortgaged chattels exceeded $3,800, and awarded the plaintiff the amount due on the judgments which he represented, the sum of $2,670.22. It awarded to the trustee in bankruptcy his second and third claims against its codefendant. It disallowed his first claim, the value of the mortgaged chattels in excess of the price for which they were sold, but in lieu thereof awarded him the surplus arising on the sale; that is to say, the difference between the mortgage debt and the sum of $2,500, for which the property was sold. That judgment was unanimously affirmed by the Appellate Division, and an appeal was taken to this court.

The appellant challenges the right of the plaintiff to maintain the action at all. He concedes that the case of Stephens v. Perrine, 143 N. Y. 476, 39 N. E. 11, is an authority in support of the action, but insists that that case has been overruled, or at least its authority seriously impaired, by the subsequent decisions of this court in Stephens v. Meriden Britannia Company, 160 N. Y. 178,...