In re Harrison, B-280-52.
| Decision Date | 27 January 1953 |
| Docket Number | No. B-280-52.,B-280-52. |
| Citation | 109 F. Supp. 614 |
| Parties | In re HARRISON. |
| Court | U.S. District Court — District of New Jersey |
This matter is before the Court on a petition for review filed herein by The National City Bank of New York, a creditor, pursuant to Section 39, sub. c of the Bankruptcy Act, as amended, 11 U.S.C.A. § 67, sub. c. The petitioner assigns as error the conclusion of the Referee in Bankruptcy that a certain chattel mortgage executed by the bankrupt was invalid. This conclusion was predicated solely on the determination that the affidavit of the mortgagee did not meet the requirements of the laws of New Jersey, R.S. 46:28-5, N. J.S.A. 46:28-5. We are constrained to agree with the Referee in Bankruptcy.
The pertinent provisions of the statute, supra, read as follows: "Every mortgage * * *, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, * * *, unless the mortgage, having annexed thereto an affidavit or affirmation, made and subscribed by the holder of such mortgage, his agent or attorney, stating the consideration of such mortgage and, as nearly as possible, the amount due and to become due thereon, be recorded" as provided by the act. (Emphasis by the Court.)
The affidavit of the mortgagee was executed by an "Assistant Cashier," who is described therein as "an officer of The National City Bank of New York, * * * associated with its Personal Credit Department." The affidavit contains no recital as to the nature or extent of the authority of the assistant cashier. It is our opinion that the absence of such a recital is fatal and invalidates the mortgage as against the creditors.
The courts of this State have uniformly held that an affidavit executed by an executive officer of a corporation, e. g., president or vice president, in his official capacity, is "in legal contemplation the act of the corporation and not that of an agent or attorney." In re Gold, 3 Cir., 93 F.2d 676, 679; American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, 68 A. 1078, 16 L.R.A.,N.S., 703; Lessler v. Paterson Nat. Bank, 97 N.J.Eq. 396, 128 A. 800, affirmed 99 N.J.Eq. 428, 131 A. 923. The validity of the mortgage is not affected by the mere absence of a recital of his authority in the affidavit. Ibid. The courts have further held, however, that an affidavit executed by an administrative officer does not meet the requirements of the statute unless there is embodied therein a statement as to the nature and extent of his authority. In re Gold, supra; Pincus v. U. S. Dyeing & Cleaning Works, 99 N.J.Eq. 160, 133 A. 66; See also Emmerglick v. Philip Wolf, 2 Cir., 138 F.2d 661, 662. The chattel mortgages have been held invalid in such cases in the absence of a recital of authority in the affidavit. Ibid.
The Court of Errors and Appeals, in the case of Moore v. Preiss Trading Corporation, 120 N.J.Eq. 214, 184 A. 521, 522, held: "The relation of the affiant to the corporate mortgagee must appear in the affidavit, either in the body thereof or in the signature thereto in the case of an officer of the corporation (...
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Stark v. Flemington Nat. Bank & Trust Co.
...of its books and accounts. He is the executive officer, who transacts its daily affairs.' Finally, in the case of In re Harrison, 109 F.Supp. 614, 615 (D.C.N.J.1953), the court said: 'the cashier of a national bank is an executive officer * * We conclude that the cashier of the defendant na......
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Franklin Nat. Bank v. Scott
...The distinction urged by plaintiff finds support in the decisions generally. See In re Gold, 93 F.2d 676 (3 Cir. 1973); In re Harrison, 109 F.Supp. 614 (D.C.1953). The only authority which would seem to require the signing of such affidavits by the cashier or treasurer is that found in Wool......