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
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 sub
The judgment and order should be affirmed, with costs.
All concurred, except Kellogg, J., who dissented, in an opinion in which Howard, J., concurred.