Semsky v. Jo-Mar Bake Shop, Inc., JO-MAR

• Decision Date: 06 December 1957
• Docket Number: JO-MAR
• Citation: 169 N.Y.S.2d 340,10 Misc.2d 628
• Parties: Morris SEMSKY and Isidore Shulman, Plaintiffs, v.BAKE SHOP, Inc., and Sherwin Grossfield, Assignee for the benefit of Creditors for Jo-Mar Bake Shop, Inc., and Regan Purchase & Sales Corp., Defendants.
• Court: New York Supreme Court

Page 340

169 N.Y.S.2d 340

10 Misc.2d 628

Morris SEMSKY and Isidore Shulman, Plaintiffs, v. JO-MAR BAKE SHOP, Inc., and Sherwin Grossfield, Assignee for the benefit of Creditors for Jo-Mar Bake Shop Inc., and Regan Purchase & Sales Corp. Defendants.

Supreme Court, Special Term, Bronx County, Part I.

Dec. 6, 1957.

Leonard Glickstein, New York City, for plaintiffs.

Friedman & Friedman, Jackson Heights, for defendant Jo-Mar Bake Shop.

Samuel Newfield, New York City, for defendant Grossfield.

Louis I. Grossfield, New York City, for Regan Purchase & Sales Corp.

MORRIS E. SPECTOR, Justice.

Motion in so far as it seeks to vacate notice of examination is denied with leave to renew upon proper papers containing a copy of the notice of examination.

As to the motion for summary judgment: This is an action for replevin of certain chattels under the terms of a chattel mortgage dated August 3, 1956. The chattels were located at an address in Bronx County which the chattel mortgage stated was the mortgagor's place of business. On August 6, 1956, the chattel mortgage was filed in the office of the Register in Bronx County and on October 10, 1956, in the office in New York County, where defendants allege the mortgagor had its principal place of business. On May 6, 1957, the mortgagor assigned for the benefit of creditors to the defendant Grossfield. On May 20, 1957, the assets of the mortgagor, including the chattels covered by the mortgage, were sold at public auction pursuant to court order. On that day plaintiffs instituted this action by service of a writ of replevin and the sheriff seized the chattels and delivered them to plaintiffs. Defendants state that 'If the chattel mortgage was filed in the proper county within a reasonable time after its execution and delivery then the mortgage is good.' They allege that the filing in New York County two months and seven days after the execution is an unreasonable length of time. Defendants also allege that the issuance of a writ of replevin after the assignment for the benefit of creditors was invalid.

The delay in filing the chattel mortgage was not so great as to be an unreasonable delay. The first filing, in Bronx County, was only three days after the date of the mortgage, indeed it was on the Monday following the Friday on which the mortgage was issued. The delay of two months and seven days in filing in New York County is not unreasonable in view of the fact that the chattels were located in Bronx...