Hardware Mut. Casualty Co. v. Lieberman

• Decision Date: 26 February 1942
• Docket Number: Civil No. 506.
• Citation: 43 F. Supp. 505
• Parties: HARDWARE MUT. CASUALTY CO. v. LIEBERMAN et al.
• Court: U.S. District Court — District of New Jersey

43 F. Supp. 505

HARDWARE MUT. CASUALTY CO. v. LIEBERMAN et al.

Civil No. 506.

District Court, D. New Jersey.

February 26, 1942.

Cox & Walburg, of Newark, N. J. (Harry E. Walburg, of Newark, N. J., of counsel), for plaintiff.

Weinberger & Weinberger, of Passaic, N. J., for defendants Jack Lieberman and Harry Lieberman, individually and trading as Lieberman Bros.

J. Bernard Saltzman, of Passaic, N. J., for defendants Max Lieberman, Cambridge Handkerchief Works, Inc., and Tillie L. Cohen.

FAKE, District Judge.

The issues here arise on a motion for summary judgment pursuant to Rules 12(c) and 56(a), 28 U.S.C.A. following section 723c.

It appears from the record that on June 10, 1941, an opinion of this court was filed, 39 F.Supp. 243, a judgment was entered thereon on June 17, 1941, in favor of the plaintiff herein and against the defendants Jack Lieberman and Harry Lieberman, individually and trading as Lieberman Bros. for the sum of $4,088.95. On July 3, 1941, an execution was issued thereon and returned unsatisfied.

On October 8, 1941, this ancillary action was instituted, seeking to recover against assets of the above named defendants alleged to have been illegally and fraudulently transferred. An order was entered setting aside the service as to the defendant Nathan M. Cohen. The remaining defendants have entered their appearances, filed their answers, and are properly before the Court in this proceeding.

On October 28, 1938, the defendants Lieberman, trading as Lieberman Bros., executed and delivered a chattel mortgage covering certain personal property to the defendant Cambridge Handkerchief Works, Inc., securing the sum of $2,002, which mortgage was duly registered in the office of the Register of Passaic County. On September 24, 1941, an alias execution issued on the above judgment, and the United States Marshal made a levy against the property covered by the mortgage.

It is argued that the mortgage is void on its face for failure to comply with N.J.R.S. 46:28-5, N.J.S.A. 46:28-5, in that the mortgage and the affidavit attached, when read together, fail to state the consideration as fully as the statute requires. The specific language of the affidavit upon which the attack is made reads as follows: "2. The liability of the said mortgagee to pay, as accommodation maker, a certain trade acceptance made on August 11, 1938, payable on November 14, 1938 in the sum of $502.00 which said trade acceptance will be duly honored and paid by the said mortgagee on its due date."

From the foregoing it is noted that there is no disclosure as to the consideration upon which the trade acceptance was based, nor is there anything to identify the mortgagor as obligated in connection with it, and a reading of the mortgage fails to supply these missing factors.

In Wisner Manufacturing Co. v. Second National Bank & Trust Co. of Red Bank, 111 N.J.Eq. 535, 162 A. 917, the late Vice Chancellor Backes held an affidavit defective which stated the consideration in a chattel mortgage to be the acceptance of an $18,500 note as a renewal note to the extent of $14,150, because it failed to state how the indebtedness arose or what the consideration was upon which the notes were given. In his opinion he cites with approval Collerd v. Tully, 78 N.J.Eq. 557, 80 A. 491, Ann.Cas.1912C, 78, wherein it was held that an affidavit disclosing that the consideration was based on a judgment was defective because it did not disclose the origin of the debt upon which the judgment was recovered, and that where the consideration was sufficiently stated in part, as in the instant case, the mortgage could not be sustained for the amount sufficiently stated, because the statutory requirement necessitated a sworn statement covering the whole amount involved.

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