Watson v. Dealy , 59 N.Y.S. 623 ( 1899 )

MacLean, J.

The plaintiff, as receiver of the property of one Mary S. Hewsey, a judgment debtor, brought this action to recover possession of certain chattels or household furniture of said judgment debtor, but to which the defendant made claim by virtue of a chattel mortgage executed in her favor by said debtor and by change of possession of the property mortgaged.

It appears by the record in this case that the plaintiff was, by an order of the City Court, appointed receiver on the 19th day of May, 1898, and that the chattel mortgage in favor of the defendant, though executed on the 14th day of February, 1898, was not recorded until after the twenty-first of May, and so was, by section 90 of chapter 418 of the Laws of 1897, void as against creditors unless accompanied by immediate delivery and followed by an actual change of possession. To establish her claim, the defendant introduced in evidence a writing, as of the date of the execution of the mortgage, and which she testified was signed and delivered therewith by the mortgagor, in which writing the mortgagor recited, among other things, that she therewith turned over to and delivered to Anna Hoefgen and consented that the sum named in the mortgage, but for which no date of payment had been given, should become due and payable on demand, and that the said Hoefgen should take and hold the mortgaged furniture under the said mortgage. The defendant also testified that this paper was delivered to her in the office where it was drawn up, and that, upon their return to the house of which Miss Hewsey was the landlady and the defendant apparently the chief boarder, she said to Miss Hewsey, “ This is all mine now, I am in possession and you may live here,” and took the keys of the house. But upon her cross-examination the defendant admitted that Miss Hewsey was using the furniture all the time after February fourteenth and ran the boarding-house there. Hpon her own testimony, then, she failed to show “ actual and continued change of possession.” Vide Steele v. Benham, 84 N. Y. 634. The judgment should be affirmed, with costs to the respondent.

Leventritt, J., concurs.