Moore v. Preiss Trading Corp.

• Decision Date: 24 April 1936
• Docket Number: No. 12.,12.
• Citation: 184 A. 521
• Parties: MOORE v. PREISS TRADING CORPORATION.
• Court: New Jersey Supreme Court

184 A. 521

MOORE

v. PREISS TRADING CORPORATION.

No. 12.

Court of Errors and Appeals of New Jersey.

April 24, 1936.

Syllabus by the Court.

1. When an affidavit of consideration to a chattel mortgage is taken by a corporation through an attorney or agent, the fact of agency must be verified in the affidavit, and when taken by the corporation per se by a duly qualified officer of the corporation, his official capacity must appear either in the body of the affidavit or in the signature thereto.

2. Hold, an affidavit by "Elias Preiss of Preiss Trading Corporation," and signed "Elias Preiss," is not in compliance with the statute.

Appeal from Court of Chancery.

Suit by Edward T. Moore, receiver of the Floc-Art Print Works, Incorporated, against the Preiss Trading Corporation to set aside a chattel mortgage. From a decree setting aside the mortgage (119 N.J. Eq. 366, 182 A. 824), defendant appeals.

Affirmed.

Beery & Adlman, of Paterson, for appellant.

Herman H. Singer, of Paterson, for respondent.

DONGES, Justice.

The receiver of Floc-Art Print Works, Inc., filed his bill of complaint to set aside a chattel mortgage made by Floc-Art Print Works, Inc., to defendant appellant, on the ground that the affidavit to be made by the mortgagee did not comply with the provisions of the Chattel Mortgage Act. P.L.1928, p. 131, Supp. to Comp. St.1925—1930, p. 211, § 36—4. The court decreed the mortgage to be invalid, and this appeal brings up for review that decree.

The affidavit to the mortgage is as follows:

"Elias Preiss of Preiss Trading Corporation, the mortgagee in the foregoing mortgage named, being duly swqrn, on his oath, says that the true consideration of the said mortgage is as follows, viz: the sum of Five Thousand Dollars advanced this day by the mortgagee to the mortgagor as evidenced by two (2) checks this day made by the mortgagee to the order of the mortgagor, one in the sum of Three Thousand Dollars ($3,000.00) and the other in the sum of Three Thousand Dollars ($3,000.00) drawn on the Manufacturers Trust Co., 8th Ave. and 34th Street Branch, New York City, total, $5,000.00 "Deponent further says that there is due and to become due on said mortgage the sum of $5,000.00 and 00/100 cents, besides lawful interest thereon from the 18th day of December, 1933.

"Elias Preiss "Sworn to and subscribed, etc."

The court below held that the affidavit did not comply with the requirements of the statute in that it was not made by the mortgagee or its agent...