Tooker v. Siegel-Cooper Co.
| Decision Date | 02 March 1909 |
| Parties | TOOKER v. SIEGEL-COOPER CO. et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Emiline F. Tooker against the Siegel-Cooper Company and others. A judgment for plaintiff (55 Misc. Rep. 68,106 N. Y. Supp. 277) was affirmed by the Appellate Division (126 App. Div. 913,110 N. Y. Supp. 1147), and defendant Siegel-Cooper Company appeals. Affirmed.
The nature of the action and the facts, so far as material, are stated in the opinion.
Benjamin G. Paskus, for appellant.
William W. Cantwell, for respondent.
The plaintiff in this suit, being a judgment creditor of the Hotel Regent Company, seeks to reach the proceeds of the sale of certain property of that defendant acquired by the Siegel-Cooper Company upon the foreclosure of a chattel mortgage. In February, 1904, the Hotel Regent Company was indebted to the plaintiff in the sum of $12,000, for which it gave notes to the plaintiff upon which judgments were subsequently recovered. While the plaintiff was thus a creditor of the Hotel Regent Company, that corporation executed a chattel mortgage to the Siegel-Cooper Company covering all its assets to secure the payment of an indebtedness of $56,000. On April 25, 1904, this mortgage was delivered to Wilmore Anway, an attorney at law, who was then the attorney for the Siegel-Cooper Company, upon the understanding, as the trial court found, ‘that if the amount secured by the mortgage was paid on or before May 23, 1904, the mortgage should be returned to the Hotel Regent Company; otherwise it was to be delivered by Anway to the defendant Siegel-Cooper Company.’ As the indebtedness was not paid on or before that date the chattel mortgage was delivered by Anway to the Siegel-Cooper Company on May 23, 1904, and a copy was filed in the office of the register in the city and county of New York on that day. The chattel mortgage was subsequently foreclosed and the property sold to the Sherman Square Hotel Company for $56,000. The mortgage covered all the property of the Hotel Regent Company, leaving nothing against which the judgments of the plaintiff could be enforced by execution. Upon these facts the learned trial judge held that the chattel mortgage was null and void as against the plaintiff on account of the unreasonable delay in filing the same, and decreed that the Siegel-Cooper Company pay over to the plaintiff from the proceeds of the sale under the chattel mortgage foreclosure an amount sufficient to satisfy her judgments.
The provisions of the lien law material to be considered upon this appeal are as follows: ‘Every mortgage or conveyance intended to operate as a mortgage of goods and chattels * * * which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, is absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, is filed as directed in this article.’ Laws 1897, p. 536, c. 418, § 90, Laws 1900, p. 499, c. 248.
In the opinion of the learned judge at Special Term he declared that under the circumstances the delivery to Anway was an unconditional delivery to the Siegel-Cooper Company; and, if there had been a finding that such delivery was made to Anway as the attorney of the appellant, there would be no room for discussion as to the correctness of the judgment. When we come to examine the findings, however, it appears that they go no further than to decide that Anway was the attorney for the Siegel-Cooper Company at the time when the chattel mortgage was delivered to him on April 25, 1904. There is no finding that the delivery was made to him as the attorney for the appellant. It is therefore contended: That we have here a case of a delivery of an instrument in escrow to a third person, who has undertaken to deliver it to the grantee if the grantor shall fail to perform a specified condition within a specified time; that there is nothing in the lien law forbidding such a delivery in escrow; and consequently that the subsequent delivery of the chattel mortgage...
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...756 (1912). 3 N.Y.Lien Law § 230. 4 See Matter of Paramount Finishing Corp., 259 N.Y. 558, 182 N.E. 180 (1932); Tooker v. Siegel-Cooper Co., 194 N.Y. 442, 87 N.E. 773 (1909); Karst v. Gane, 136 N.Y. 316, 32 N.E. 1073 (1893); Brown v. Atlantic Bank, 259 F. 2d 920 (2d Cir. 1958) (per 5 Karst ......
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