Sheldon v. McFee

Smith, P. J.:

One White was the owner of an insurance business in Oneonta, N. Y., and of some office furniture used in connection therewith, including a safe, which is here in controversy. Upon the llth of November, 1909, White sold to one Fleming a three-fourths interest in the insurance business and transferred all of the office furniture, including this safe. It seems that Fleming’s mother went on the bond of the firm to account for insurance moneys. Thereafter Fleming retired from the business and sold his interest back to White. White was to furnish $700 to pay to insurance companies moneys owing, in order to release Mrs. Fleming from her bond. That $700 was borrowed of plaintiff, and to secure him Fleming, at request of White, gave to him the bill of sale of the office furniture, including the safe. This was security for some notes given to plaintiff by White to repay the amount furnished. The bill of sale went direct from Fleming to plaintiff instead of going to White, and from her to plaintiff. This bill of sale was filed with the city clerk, where it should have been filed if a chattel mortgage. (See Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 232; Id. § 230; since respectively amd. by Laws of 1910, chap. 182, and Laws of 1911, chap. 326.) Thereafter White traded the old safe for a new one, which was smaller, with the Carey Safe Company. Of this trade plaintiff was ignorant. These defendants claim title through the Carey Safe Company. Plaintiff demanded the safe, which was refused, and this action was brought for conversion.

The transfer from Fleming to plaintiff was to secure to plaintiff payment of the notes given by White. It was, therefore, a chattel mortgage, and being properly filed was notice to. the Carey Safe Company and all the world, so that defendants are not purchasers in good faith. The plaintiff then had the right to the possession of the safe, and the refusal to surrender the same constituted conversion.

This case was here before on a judgment for plaintiff, and we reversed the judgment on the law and facts on the ground that it appeared that plaintiff had ratified the exchange of safes (156 App. Div. 877). After the exchange White sold out her business to Ceperly & Morgan, and, with plaintiff’s consent, sold to them certain of the office furniture, “with exception of the safe and typewriter.” Afterwards White gave to plaintiff a bill of sale of the new small safe, which plaintiff sold for fifty dollars. We were of opinion that plaintiff must have known of the exchange when he took a bill of sale of the new safe and thereafter sold it. On the first trial plaintiff was not sworn. On this trial he was, and swore that he did not know of the exchange, and supposed the new safe was a new purchase. This question was squarely submitted to the jury which found for the plaintiff. I hardly think we should reverse a second verdict on this finding of fact.

The judgment and order should be affirmed, with costs.

All concurred, except Kellogg, J., who dissented, in an opinion in which Howard, J., concurred.