Constance v. Harvey
| Citation | 215 F.2d 571 |
| Decision Date | 07 July 1954 |
| Docket Number | No. 247,Docket 23036.,247 |
| Parties | CONSTANCE v. HARVEY. |
| Court | U.S. Court of Appeals — Second Circuit |
Milton E. Ehrenreich, New York City, for petitioner-creditor-appellant.
Harvey M. Lifset, Albany, N. Y., for trustee-appellee.
Before CHASE, Chief Judge, and HINCKS and HARLAN, Circuit Judges.
The question before us is whether a chattel mortgage given by Francis T. Reilly, the bankrupt, to Thomas Constance, the appellant, is valid as against Reilly's Trustee in Bankruptcy, the appellee.
On November 23, 1949, Constance sold to Reilly, residing at Watervliet, Albany County, N. Y., a roadside diner located in the City of Albany, N. Y. The purchase price was $35,000, payable $15,000 in cash and $20,000 by a purchase money mortgage executed by Reilly in favor of Constance.
On November 25, 1949, Milton E. Ehrenreich, the attorney for Constance, sent copies of the mortgage to the County Clerk of Albany County and the Town Clerk of Watervliet for filing, together with the appropriate filing fees. The copy of the mortgage sent to the Albany County Clerk was duly filed in his office in the City of Albany but the copy sent to the Watervliet Clerk was returned to Mr. Ehrenreich, with a notation "Filed in Albany." Concededly, Watervliet was the only proper place of filing, since (a) that was where Reilly, the mortgagor, resided, and (b) the County Clerk of Albany County, in which Watervliet was situated, had no office in Watervliet; and the filing in the Albany County Clerk's office was of no avail. New York Lien Law § 232, McK.Consol.Laws, c. 33.1
Mr. Ehrenreich testified that he took the Watervliet Clerk's notation to mean that Reilly had changed his residence to Albany, where the diner was located, and that he made no further effort to accomplish filing in Watervliet until October 5, 1950 — over ten months later — when he sent a representative to Watervliet for that purpose. This time the Watervliet Town Clerk filed the instrument, and there was hearsay evidence, which was not objected to, that the Clerk then acknowledged that he had made an error in not filing the mortgage when he had originally received it in November 1949. It was found below that the Clerk had so erred.
Reilly was adjudicated a bankrupt on October 23, 1951, and Arthur J. Harvey was appointed Trustee. The sole asset of the estate was the diner which was sold by the Trustee for $22,150, against which proceeds Constance claims a valid lien to the extent of $15,650, the unpaid balance of the purchase price of the diner. The District Court, confirming the Referee in Bankruptcy, has held the chattel mortgage invalid as against the Trustee.
The first question we have to decide is this: Was the effective filing date of this chattel mortgage shortly after November 25, 1949, when the Watervliet Clerk received the instrument and erroneously failed to file it, or on October 5, 1950, when the mortgage was actually filed at Watervliet? It is conceded that this question is to be determined under New York law.
The New York Lien Law makes chattel mortgages which have not been filed as provided therein void as against creditors of the mortgagor and subsequent good faith purchasers and mortgagees for value, but specifies no time for filing. §§ 230, 232. The New York Courts hold that filing must be within a reasonable time after execution of the instrument. Tooker v. Siegel-Cooper Co., 1909, 194 N.Y. 442, 87 N.E. 773. Absent extenuating circumstances, it could scarcely be disputed that a delay of over ten months is not a filing within a reasonable time. It is argued, however, that this delay was excused by the mistake of the Watervliet Clerk, and we are referred to a number of cases in which it has been held that the failure or refusal of a public official to file an instrument required to be filed is not to be charged against one claiming under it. Manton v. Brooklyn & Flatbush Realty Co., 1916, 217 N.Y. 284, 111 N.E. 819; President etc. of the Manhattan Company v. Laimbeer, 1888, 108 N.Y. 578, 15 N.E. 712; New York County Nat. Bank v. Wood, 1st Dept. 1915, 169 App.Div. 817, 153 N.Y.S. 860, affirmed New York County Nat. Bank v. Peckworth, 222 N.Y. 662, 119 N.E. 1062; In re Labb, D.C.W.D.N.Y.1941, 42 F.Supp. 542.
We think these cases are distinguishable from the one before us. In each of them the fault was entirely that of the public official involved, without any neglect on the part of the person attempting to file, or there were no intervening rights of third parties. Here the Referee found that the attorney for the mortgagee knew that the mortgagor resided at Watervliet, and the attorney himself testified that he understood the law to require filing there. Yet he did nothing further to accomplish filing in Watervliet until over ten months after the Clerk had returned the mortgage to him without filing, and offered no excuse for this inaction. The circumstances here are quite different from those in New York County Nat. Bank v. Wood, supra, where the managing clerk of the lienor's attorney took back to his superior the instrument which he had attempted to file, and the matter was then promptly followed up and filing accomplished within less than one hour.
In the present case, the inaction of the appellant's attorney was in effect an acquiescence for more than ten months in the Watervliet Clerk's failure to file the mortgage. As was said by Cardozo, J., in the Manton case, supra, 217 N.Y. at page 288, 111 N.E. at page 820: "If the act of the lienor has made notice impossible, he must be held to have estopped himself from enforcing his lien against persons who would otherwise be misled to their prejudice." We think that the Referee and the District Court were correct in holding that the filing in the present case was not seasonable under the New York law.
This, however, does not dispose of the case, as the District Court seems to have thought, for the belated filing on October 5, 1950 may nonetheless have been effective as against Reilly's Trustee in Bankruptcy. Section 70, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. c, upon which the Trustee principally relies, clothes the Trustee with the status of a lien creditor as to any property of the bankrupt with respect to which a hypothetical creditor of the bankrupt "could have obtained a lien by legal or equitable proceedings at the date of bankruptcy." By definition the "date of bankruptcy" is the "date when the petition was filed." Bankruptcy Act, § 1(13), 11 U.S.C.A. § 1(13). But under New York law the filing of this chattel mortgage, even though belated, was good as to all creditors of Reilly who became such subsequent to the filing of the mortgage, whether belated or not. In re...
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