Empire Trust Co. v. Heinze

• Decision Date: 11 May 1926
• Citation: 242 N.Y. 475,152 N.E. 266
• Parties: EMPIRE TRUST CO. v. HEINZE et al.
• Court: New York Court of Appeals Court of Appeals

242 N.Y. 475

152 N.E. 266

EMPIRE TRUST CO.

v.HEINZE et al.

Court of Appeals of New York.

May 11, 1926.

Action by the Empire Trust Company against Ruth Noyes Heinze and others. Judgment for plaintiff was unanimously affirmed by the Appellate Division (214 App. Div. 790, 210 N. Y. S. 846), and defendants appeal.

Modified and affirmed.Appeal from Supreme Court, Appellate Division, Second Department.

Thomas Ewing and Arthur P. Heinz, both of New York City, for appellants Ruth Noyes Heinze and another.

George Pfeil, of New York City, for appellant Madison Real Property & Security Co.

William L. Woodward and Warren N. Gaffney, both of New York City, for respondent.

CRANE, J.

On the 26th day of September, 1907, Ruth Noyes Heinze was indebted to the Empire Trust Company in the sum of $15,000, for which she gave her promissory note, payable ten months after date, with interest at 6 per cent. On October 26, 1908, the note became due and payable, and was protested for nonpayment.

On the 29th of March, 1910, there being a balance of $12,000 due on the note, the defendant Ruth Noyes Heinze and her husband Arthur P. Heinze, executed and delivered to the plaintiff a mortgage upon fourteen very valuable oil paintings belonging to Mrs. Heinze. On the 26th day of October, 1922, this action was commenced to foreclose the chattel mortgage and to obtain a judgmentagainst Ruth Noyes Heinze and Arthur P. Heinze for any deficiency that might arise after applying the proceeds of the pictures to the Heinze indebtedness.

Judgment has been given for the plaintiff as demanded, and the decision has been unanimously affirmed by the Appellate Division. The only question which can be reviewed by us after the unanimous affirmance is the application of the statute of limitations to the facts as found. If the chattel mortgage were under seal, it is conceded that this action was commenced in time. The findings are so worded that both parties find support for their contentions; one, that the instrument was a sealed instrument, the other that it was not a sealed instrument. The findings set forth the chattel mortgage in full, from which it appears that no seal was fixed to the signatures. While the trial justice finds that the mortgage was under seal, his further findings explain what he considers a sealed paper to be. He uses the expression more as a conclusion of law than as a statement of fact. He makes other findings in which he states that it was the intention of the parties that the instrument should be sealed, and that, while there is no flourish nor letters ‘L. S.’ or other mark intended to indicate a seal accompanying the name of either of the mortgagors, yet he says in his conclusion of law, ‘The chattel mortgage must be regarded in law as a sealed instrument.’

We conclude, therefore, that the findings of the trial justice show that this instrument was not under seal, but that the judge considered it as a sealed instrument in law because of the expressed intention of the parties. Such a conclusion does not follow from the facts. There must be something in the nature of a seal, some mark to indicate a seal affixed to the signatures to constitute a document a sealed instrument. The intention to seal under these circumstances, whether expressed or implied, does not make a seal. The recital ‘signed, sealed, and delivered,’ etc., or the words, ‘whereunto we have affixed our seals,’ do not make a sealed instrument, if, as a fact, nothing is affixed to the signatures which the law recognizes as a seal. Section 44 of the General Construction Law (Consol. Laws, c. 22) reads:

‘The private seal of a person, other than a corporation, to any instrument or writing shall consist of a wafer, wax or other similar adhesive substance affixed thereto, or of paper or other similar substance affixed thereto, by mucilage or other adhesive substance, or of the word ‘seal,’ or the letters ‘L. S.’ opposite the signature.'

Intention, therefore, cannot make a seal where this provision has not been complied with. See Metropolitan Life Ins. Co. v. Bender, 124 N. Y. 47, 26 N. E. 345,11 L. R. A. 708;Warren v. Lynch, 5 Johns. 239, 245; Boothbay v. Giles, 68 Me. 160; Maryland v. Humbird, 54 Md. 327.

The reverse of this proposition does not hold true. The seal annexed to an ordinary obligation like a promissory note does not necessarily make it a sealed instrument, in the absence of any indication that such was the intention. Matter of Pirie, 198 N. Y. 209, 215,91 N. E. 587,19...