(concurring). Section 90 of chapter 418 of the Laws of 1897, so far as it applies to the case at bar, is a reenactment of section 1 of chapter 279 of the Laws of 1833.
It was held in Stephens v. Perrine, 143 N. Y. 476, that, whenever under the provisions of the section last mentioned a chattel mortgage is void as against creditors, it is void from the beginning and continues void at all times; that in such a case the same principle is applicable and enforcible, which applies and has been enforced in the case of a mortgage executed for the purpose of defrauding creditors, and that consequently the mortgagee cannot, as against a receiver appointed in proceedings supplemental to execution, acquire title to the mortgaged property by taking possession and selling the same under the mortgage and bidding it off on the sale, and this, although the mortgage was given in good faith to secure an actual indebtedness.
The principle of that case is sufficient to authorize the maintenance of the action as brought in the case at bar. That the mortgage in suit is void as against the plaintiff as receiver has been sufficiently shown by Hr. Justice HacLean.
For the foregoing reasons, I concur with him that the judgment must be affirmed, with costs.
Judgment affirmed, with costs to respondent.