The complaint alleges that the plaintiff was the owner and entitled to the possession of an Atlas truck and Boyer runabout and that such property was sold by the sheriff under an execution issued on a judgment recovered against John H. Uline by William T. Bininger and by him assigned to the defendant Boaser. The allegation of ownership is denied in the answer.
On August 4, 1919, the property was owned by said Uline and in his possession. On that day he gave to the plaintiff an instrument as follows:
*131“ Received of Frank Wager Troy, N. Y.
“ $1,000. One thousand dollars. Aug. 4, 1919.
“ In consideration of the sum of $1,000, one thousand dollars, I agree to deliver to you 1 Ford delivery Model 1919 No. 2647940 — license 891592 —
“ 1 Atlas truck Model 1912.
“ 1 Boyer rebuilt roadster, and other automobile accessories and supplies which I have bought and paid for and are at my garage at West Sandlake, known as the Brewster House. “Witness— JOHN H. ULINE.
“ Robert A. Follett.”
On the trial plaintiff did not claim an absolute sale to him under said instrument. His testimony makes it clear that the transaction was intended as a security for a previous indebtedness owed him by Uline. There is no room for the contention that the evidence justifies an inference of an absolute sale. The parties then and thereafter treated the transaction as a security and the plaintiff testified that it was such.
There was no delivery of the property in question by Uline to the plaintiff nor any change of possession. He retained it under instructions by the plaintiff to do so and to sell it, giving to him $525 of the proceeds and retaining the balance for his own use. Plaintiff testified the property was worth $1,100. That was the situation when the sheriff under the Roaser execution levied on the property on October 24, 1919. The instrument of August 4, 1919, was never filed as a chattel mortgage.
In Shilton v. Codington (185 N. Y. 80, 86) it was said by Chief Judge Cullen: “By reason of the failure to file the chattel mortgage for five years, that mortgage was void as against creditors whose claims accrued prior to such filing. (Lien Law, § 90, chap. 418, Laws of 1897;* Thompson v. Van Vechten, 27 N. Y. 568.) ‘ A creditor by simple contract is within the protection of the statute as much as a creditor by judgment, but until he has a judgment and a hen, or a right to a lien upon the specific property, he is not in a condition *132to assert his rights by action as a creditor.’ (Southard v. Benner, 72 N. Y. 424; Karst v. Gane, 136 N. Y. 316.)”
That statement of the rule applies to the present situation. There having been no absolute sale of the property to plaintiff and the instrument of August 4, 1919, not having been filed as a mortgage or conveyance intended to operate as such and not having been accompanied by delivery or change of possession of the property, the transaction is void as against the defendants. (Lien Law, § 230, as amd. by Laws of 1916, chap. 348.*)
The judgment is, therefore, right and should be affirmed.
John M. Kellogg, P. J., H. T. Kellogg and Van Kirk, JJ., concur; Kilby, J., dissents, with an opinion.
Amd. by Laws of 1900, chap. 248; now Lien Law, § 230, as amd.— [Rep.
Since amd. by Laws of 1921, chap. 419.— [Rep.