Keischmann v. Masker

• Decision Date: 15 June 1903
• Citation: 69 N.J.L. 353,55 A. 301
• Parties: KEISCHMANN et al. v. MASKER.
• Court: New Jersey Supreme Court

55 A. 301

69 N.J.L. 353

KEISCHMANN et al.

v. MASKER.

Court of Errors and Appeals of New Jersey.

June 15, 1903.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Michael Reischmann and others against John H. Masker. Judgment for defendant, and plaintiffs bring error. Reversed.

Cowles & Carey, for plaintiffs in error.

Potts, Midlige & Higgins, for defendant in error.

HENDRICKSON, J. This writ brings up for review a judgment of the Hudson circuit in favor of the defendant in an action of replevin. The case was tried by the judge, a jury being waived, upon facts stipulated. The question in controversy is as to the legal effect of an unrecorded agreement of conditional sale in the form of a lease where the possession of foods has been given thereunder as against a distress of the goods of the lessee. The facts giving rise to the controversy, briefly stated, are these: The plaintiffs in the instrument referred to, signed by the lessee and delivered to plaintiffs, rented to one Pandeledis, with place of business at 127 Newark avenue, Jersey City, certain mahogany tables and certain chairs therein described, valued at $215, for the use of which the latter agreed to pay rent as follows: $115 immediately upon receipt of the chattels as payment for the rent of the first month only, and then at the rate of $25 per month, payable in advance at a specified date in each month named, for four months, at plaintiffs' office in New York, without notice or demand. The lessee further agreed that until all of the rent was fully paid the chattels specified were to remain the exclusive property of the plaintiffs, and that upon default in any of the payments he would return and deliver the same to plaintiffs at their office or wherever they might direct, in good order, etc. It was also agreed therein that when the payments of rent should have amounted to $215 the chattels should become the property of the lessee, and a bill of sale for the same should be given by plaintiffs. Shortly after the making of the lease the chattels were delivered, in pursuance of the agreement therein, to Pandeledis at his place of business, the latter having paid the sum reserved for the rent of the first month. After default had been made in the further payments of the rent, but before the expiration of the time limited for the final payment, Mayer Bros, issued a landlord's distress warrant for the recovery of $200 due to them by Pandeledis for rent of his place of business. The defendant, who was a constable, by virtue of the distress warrant levied upon the tenant's personal property, and included with his levy the chattels in possession of Pandeledis under the lease. The plaintiffs in this suit thereupon demanded of the defendant the delivery to them of the said chattels, but such demand was refused, and thereupon plaintiffs brought their said action to recover the possession thereof. The defendant by his plea avowed the taking of the chattels, under and by virtue of the distress warrant, as the property of Pandeledis. By an oversight the plaintiffs failed to have the lease recorded, as an agreement of conditional sale, in the register's office of Hudson county; so that the sole question for the determination of the court below, as the parties expressed it in their stipulation, was "whether on account of the failure of the plaintiffs to file or record the lease in said office, pursuant to the provisions of chapter 271 of the Laws of 1889, p. 421, etc. as amended by chapter 144 of the Laws of 1895. p. 302, the defendant, by virtue of his levy under said distress, acquired a lien upon the chattels mentioned...