National City Bank of New York v. Del Sordo
| Decision Date | 29 November 1954 |
| Docket Number | No. A--15,A--15 |
| Citation | 16 N.J. 530,109 A.2d 631 |
| Parties | The NATIONAL CITY BANK OF NEW YORK, a corporation, Plaintiff-Respondent, v. Dante DEL SORDO and Ben Siciliano, Individually and trading as miami Motors, Defendants-Appellants |
| Court | New Jersey Supreme Court |
Philip Barbash, Jersey City, for appellants.
Louis Kraemer, Newark, for respondent (Furst, Furst & Feldman, and Irving J. Rosenberg, Newark, attorneys).
The opinion of the court was delivered by
This is a civil action in which the plaintiff, the National City Bank of New York, a corporation (hereinafter called the plaintiff), sought to recover possession of an automobile or in the alternative to recover judgment for its value, from Dante Del Sordo and Ben Siciliano, individually and trading as Miami Motors, of Newark, New Jersey (hereinafter called the defendants), under a chattel mortgage made by a Robert William Conway, of Newark, New Jersey (hereinafter called Conway). The action was instituted in the Law Division of the Superior Court. Summary judgment was entered therein in favor of the plaintiff and the defendants appealed to the Superior Court, Appellate Division, Prior to hearing there the appeal was certified to this court on our own motion.
Conway, on September 26, 1952, made a chattel mortgage on a used 1950 automobile to the plaintiff as security for the payment of a loan of $2,250, with interest, which was to be paid to the plaintiff in equal monthly installments of $68.15. The plaintiff caused this chattel mortgage to be recorded in the office of the Register of Deeds of Essex County, New Jersey, on September 27, 1952, but made no attempt to comply with the requirements of R.S. 39:10--11 as am. by L.1939, c. 270, sec. 2; L.1946, c. 136, sec. 7 and L.1951, c. 334, sec. 1, N.J.S.A. The statutory provision adverted to, namely R.S. 39:10--11, as amended, N.J.S.A., supra, reads as follows:
'In the case of a sale other than absolute, copy of the certificate of ownership recording the encumbrance shall be delivered to the purchaser, and the director shall collect a fee of two dollars ($2.00) for the issuance and filing thereof.
'In addition to the issuing and filing fee, there shall be paid to the director a fee of twenty five cents ($0.25) for notice of satisfaction of the lien or encumbrance on the record or abstract of contract, where the motor vehicle is subject to a lien or encumbrance as provided in section 39:10--14.
'Any purchaser of a motor vehicle who fails to comply with the provisions of this section shall pay to the director a penalty of five dollars ($5.00) plus the issuing and filing fee.'
Note: The recent further amendment, L.1954, c. 207, sec. 1, is not directly involved in this case.
The plaintiff's noncompliance with R.S. 39:10--11, as amended, N.J.S.A., supra, was its failure to present the chattel mortgage with the certificate of ownership to the Director of Motor Vehicles of New Jersey for recording, filing and issuance of a new certificate of ownership recording the encumbrance thereon.
Conway, having retained the certificate of ownership, on May 19 or 20, 1953 sold the automobile in question to the defendants and assigned to them the certificate of ownership therefor (which, as above indicated, by virtue of the plaintiff's failure to comply with R.S. 39:10--11, as amended, N.J.S.A., supra, contained no notice of the plaintiff's chattel mortgage).
The chattel mortgage being in default, the plaintiff on June 25, 1953 made a demand in writing on the defendants for possession of the automobile. Upon the defendants' refusal to comply with the demand, the plaintiff instituted this action by complaint. The defendants filed an answer asserting that as to them to chattel mortgage was void for failure to have a proper affidavit of consideration annexed thereto and for failure of the plaintiff to record the chattel mortgage with the Director of Motor Vehicles as required by R.S. 39:10--11, N.J.S.A., as amended, supra, and R.S. 46:28--5, N.J.S.A. (R.S. 46:28--5, N.J.S.A., supra, insofar as pertinent hereto declares a chattel mortgage to be void as to subsequent purchasers in good faith in the event of noncompliance with the pertinent statute.) The Superior Court, Law Division, conceiving R.S. 39:10--11, as amended, N.J.S.A., supra, to be unconstitutional, rendered summary judgment for the plaintiff. This appeal is from that summary judgment.
The questions involved on this appeal include: (a) whether the affidavit of consideration made by an assistant cashier of the plaintiff corporation was valid; (b) whether there was an invalidating discrepancy between the amount to be paid as stated in the chattel mortgage and the amount stated to be due in the affidavit of consideration; (c) whether R.S. 39:10--11, as amended, N.J.S.A., supra, is constitutional; and (d) whether the plaintiff's rights were preserved to it in despite of R.S. 39:10--11, as amended, N.J.S.A., supra, by virtue of the decision of the Superior Court, Law Division, rendered in another matter between different parties on November 21, 1952, that this statutory provision was unconstitutional, viz., Sayre & Fisher Brick Co. v. Dearden, 23 N.J.Super. 453, 93 A.2d 52 (Law Div.1952).
The first question involved is whether the affidavit of consideration annexed to the plaintiff's chattel mortgage was validly executed by the corporation. The officer who made the affidavit of consideration was an assistant cashier, Thomas C. Houts, executive head of the Veterans Loan Division of the plaintiff's Personal Credit Department. This officer was in complete charge of and had full responsibility over the granting of all veterans' loans and the records maintained in connection therewith, and the loan to Conway was a veterans' loan.
We are of the opinion that the corporate affidavit was duly and validly made by the plaintiff's assistant cashier, and that he had adequate knowledge of the transaction. In this respect the decision of the former Court of Errors and Appeals in American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, 68 A. 1078, 16 L.R.A.N.S., 703 (E. & A.1908), is dispositive.
The questions involved relating to the amounts stated to be due in the chattel mortgage and in the affidavit of consideration, namely the alleged discrepancy between the statements of amount due, are without merit. The chattel mortgage was conditioned upon the payment of the principal sum of $2,250 in 36 installments of $68.15 per month, which payments total $2,453.40. The affidavit of consideration refers to the loan in the principal sum of $2,250, and states the amount due as $2,250 'besides lawful interest thereon from the 26th day of September, 1952.' The difference of $203.40 obviously represents interest over the three-year period of the loan, within the interest rate charged by the plaintiff (and referred to in various places in the chattel mortgage), namely, 5.7%. Under these circumstances there is no invalidating discrepancy in the statements of amounts due. McDonald v. H. B. McDonald Const. Co., Inc., 117 N.J.Eq. 181, 183, 175 A. 87 (Ch.1934). Cf. Bruck v. The Credit Corp., 3 N.J. 401, 411, 70 A.2d 496 (1950).
There remain in this appeal questions involved relating to constitutionality of R.S. 39:10--11, as amended, N.J.S.A., supra, and the rights of the parties in connection therewith.
The record discloses failure of the plaintiff to comply with the intent of R.R. 4:37--2 by giving notice of its attack on the constitutionality of R.S. 39:10--11, N.J.S.A., supra, to the Attorney-General.
The issue of unconstitutionality was not asserted in the pleadings and appears to have been raised in the first instance at the oral argument on the motions for summary judgment in the Law Division. This circumstance required the trial judge to invoke R.R. 4:37--2, supra, which provides:
'* * * the court shall require notice to be given the Attorney General of the State; and the State shall upon timely application be permitted to intervene * * *.'
However, it does not appear that...
To continue reading
Request your trial
-
State of New Jersey v. Moriarity
... ... , Jr., County Counsel, by Isadore Glauberman, Jersey City, N. J., of counsel, for petitioners ... , and still were on deposit, in the Hudson County National Bank; ... (3) One Joseph V. Moriarity was subsequently ... United States v. Bank of New York and Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 ... ...
-
Merchants Indem. Corp. v. Eggleston
...which title can be transferred only in accordance with statutory provisions. N.J.S.A. 39:10--1 et seq.; National City Bank of New York v. Del Sordo, 16 N.J. 530, 538, 109 A.2d 631 (1954); Turpin v. Standard Reliance Ins. Co., 169 Neb. 233, 99 N.W.2d 26 (Sup.Ct.1959); Kietlinski v. Interstat......
-
Sabato v. Sabato
...the operation of the statute render ineffective related contracts which in themselves may be lawful. (National City Bank v. Del Sordo, 16 N.J. 530, 541--542, 109 A.2d 631, 637 (1954); emphasis supplied). The Fourteenth Amendment in the domain of state action does not operate as a limitation......
-
Martin v. Nager
...regulate exclusively titles and evidence of ownership and to prevent fraud and theft of motor vehicles, Nat'l City Bank of New York v. DelSordo, 16 N.J. 530, 540, 109 A.2d 631 (1954) and to prevent sales of automobiles to innocent purchasers by one having no legal title thereto. Stein v. Sc......