and against subsequent purchasers or mortgagees in good faith, after the expiration of the first or any succeeding term of one year, reckoning from the first filing, unless within 30 days next preceding the expiration of each such term a statement containing a description of such mortgage, the names of the parties, the time when and the place where filed, the interest of the mortgagee, etc., is filed in the proper office, etc. It is conceded in this case that no renewal statement was ever filed, and by the language of the statute itself the mortgage became invalid as against the creditors of the mortgagor at the expiration of a year commencing July 29, 1913. The statute is perfectly plain, and there is no reason for its being misunderstood or misconstrued. A chattel mortgage must be refiled as required by the statute, or it ceases to be valid as against creditors of the mortgagor. The learned counsel for defendant urges that the trustee in bankruptcy of the mortgagor cannot take advantage of this situation, but I cannot agree with him in that contention. The chattel mortgage in this case, while it was properly filed in the first instance, was not refiled as the law requires, and when it was not refiled it became invalid as to creditors, and the situation is precisely the same as though the chattel mortgage had never been filed, and the authority seems to be ample to the effect that the trustee in bankruptcy could take advantage of the situation and attack this chattel mortgage and assert the rights of creditors against it. Skilton v. Coddington, 185 N. Y. 80, 77 N. Ē. 790, 113 Am. St. Rep. 885; Titusville Iron Co. v. City of N. Y., 207 N. Y. 203 (see opinion, page 210), 100 N. E. 806; Dunn Salmon Co. v. Pillmore, 55 Misc. Rep. 546 (see opinion, pages 551, 552), 106 N. Y. Supp. 88; Scott v. Thousand Island Boat Co. (Sup.) 134 N. Y. Supp. 150; Bankruptcy Law (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1913, § 9651]) § 67. The defendant is unfortunate that he did not refile his chattel mortgage; but he alone is to blame, and when he failed to do so, as the law required, it ceased to be valid as against creditors, and his taking possession of the property long after the mortgagor had been adjudged a bankrupt, and the plaintiff had been appointed and qualified as trustee in bankruptcy, will not be effectual as against the rights of creditors represented by plaintiff. At the time defendant took possession of the property under his chattel mortgage there was no valid chattel mortgage in existence so far as the rights of creditors were concerned, and his taking possession of the property under the mortgage would not enlarge his interest or in any way affect the rights of intervening creditors. Zartman v. Bank, 189 N. Y. 267, 82 N. E. 127, 12 L. R. A. (N. S.) 1083. I am not unmindful of the fact that several federal authorities cited by defendant would seem to sustain his contention here, but the Lien Law requiring chattel mortgages to be filed and refiled is a New York state statute, is perfectly plain in its terms, and must be adhered to and strictly complied with, and the decisions of our state courts clearly indicate that the plaintiff, trustee in bankruptcy, can, in the interest. of the creditors of the mortgagor and bankrupt, take advantage of the omission of defendant to safeguard his rights by refiling his chattel mortgage as the law required. This situation is unfortunate for the defendant, but he alone is responsible for it. The demurrer must be overruled, with costs, but with leave to defendant to plead over within 20 days on payment of costs. (88 Misc. Rep. 3) BRONX HOSPITAL v. GROLIER SOCIETY. (Supreme Court, Appellate Term, First Department. December 4, 1914.) 1. CORPORATIONS (§ 453*)—CONTRACTS BY AGENT-VALIDITY-USE OF CorpoRATE NAME. Where the lease described plaintiff as lessor, and A., of the defendant society, as lessee, but the attestation clause recited that the lessee had caused the instrument to be signed by its representative, the lease may be construed as that of the defendant society, instead of the agent. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1798, 1799; Dec. Dig. § 453.*] 2. CORPORATIONS (§ 426*) — AGREEMENTS BY AGENT DENCE. - ·RATIFICATION - EVI Where defendants, after being notified of a lease signed by their agent, orally agreed to change a stand provided for their exhibition, and did so, there was a ratification of the agent's authority. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1596, 17021704, 1707, 1708, 1710-1716; Dec. Dig. § 426.*] 3. LANDLORD AND TENANT (§ 49*)-BREACH OF LEASE-EVIDENCE. Where a lease expressed the consideration as $375 in books, the introduction of the lease in evidence in an action for breach by the lessee was sufficient prima facie proof of damage in the amount named. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 117-119; Dec. Dig. § 49.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by the Bronx Hospital against the Grolier Society. From a judgment dismissing the complaint, plaintiff appeals. Reversed and remanded. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Henry Leon Slobodin, of New York City, for appellant. BIJUR, J. [1] The plaintiff had arranged to give an exhibition in premises in the city of New York. A salesman of defendant called on plaintiff's representative and executed the contract in suit. The agreement describes the plaintiff as lessor and the other party as "Isaac L. Adelman, of the Grolier Society," and is signed by Adelman in the same terms. Standing alone, this agreement might very well be construed as that of Adelman personally; but in the attestation clause it is recited that the lessee has caused these presents to be signed by its "representative"; the latter word having been written by Adelman himself at the time of execution. In this form it seems to me that the agreement sufficiently indicates that it was intended to bind the defend *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes and against subsequent purchasers or mortgagees in good faith, after the expiration of the first or any succeeding term of one year, reckoning from the first filing, unless within 30 days next preceding the expiration of each such term a statement containing a description of such mortgage, the names of the parties, the time when and the place where filed, the interest of the mortgagee, etc., is filed in the proper office, etc. It is conceded in this case that no renewal statement was ever filed, and by the language of the statute itself the mortgage became invalid as against the creditors of the mortgagor at the expiration of a year commencing July 29, 1913. The statute is perfectly plain, and there is no reason for its being misunderstood or misconstrued. A chattel mortgage must be refiled as required by the statute, or it ceases to be valid as against creditors of the mortgagor. The learned counsel for defendant urges that the trustee in bankruptcy of the mortgagor cannot take advantage of this situation, but I cannot agree with him in that contention. The chattel mortgage in this case, while it was properly filed in the first instance, was not refiled as the law requires, and when it was not refiled it became invalid as to creditors, and the situation is precisely the same as though the chattel mortgage had never been filed, and the authority seems to be ample to the effect that the trustee in bankruptcy could take advantage of the situation and attack this chattel mortgage and assert the rights of creditors against it. Skilton v. Coddington, 185 N. Y. 80, 77 N. Ē. 790, 113 Am. St. Rep. 885; Titusville Iron Co. v. City of N. Y., 207 N. Y. 203 (see opinion, page 210), 100 N. E. 806; Dunn Salmon Co. v. Pillmore, 55 Misc. Rep. 546 (see opinion, pages 551, 552), 106 N. Y. Supp. 88; Scott v. Thousand Island Boat Co. (Sup.) 134 N. Y. Supp. 150; Bankruptcy Law (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1913, 9651]) § 67. The defendant is unfortunate that he did not refile his chattel mortgage; but he alone is to blame, and when he failed to do so, as the law required, it ceased to be valid as against creditors, and his taking possession of the property long after the mortgagor had been adjudged a bankrupt, and the plaintiff had been appointed and qualified as trustee in bankruptcy, will not be effectual as against the rights of creditors represented by plaintiff. At the time defendant took possession of the property under his chattel mortgage there was no valid chattel mortgage in existence so far as the rights of creditors were concerned, and his taking possession of the property under the mortgage would not enlarge his interest or in any way affect the rights of intervening creditors. Zartman v. Bank, 189 N. Y. 267, 82 N. È. 127, 12 L. R. A. (N. S.) 1083. I am not unmindful of the fact that several federal authorities cited by defendant would seem to sustain his contention here, but the Lien Law requiring chattel mortgages to be filed and refiled is a New York state statute, is perfectly plain in its terms, and must be adhered to and strictly complied with, and the decisions of our state courts clearly indicate that the plaintiff, trustee in bankruptcy, can, in the interest of the creditors of the mortgagor and bankrupt, take advantage of the omission of defendant to safeguard his rights by refiling his chattel (164 App. Div. 733) ROACH v. LORENCE et al. (No. 6472.) (Supreme Court, Appellate Division, First Department. December 4, 1914.) JUDGMENT (§ 197*)-NONSUIT BY CONSENT-DISMISSAL ON MERITS. Where defendant pleaded three counterclaims, but at the trial consented to a nonsuit as to two of them, and introduced no evidence thereon, a judgment dismissing those counterclaims on the merits is unwarranted, and will be modified, so as to show a simple dismissal. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 357, 359; Dec. Dig. § 197.*] Appeal from Special Term, New York County. Action by Emeline Roach against Otto Lorence and another. Judgment for plaintiff, and defendants appeal. Modified and affirmed. Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ. Isaac N. Miller, of New York City, for appellant. DOWLING, J. The judgment appealed from is supported by the evidence and is correct in form, except as to the provisions thereof disposing of the three counterclaims interposed by the defendants. It appears that upon the trial the defendants consented to a nonsuit as to the second and third counterclaims and introduced no evidence thereupon, whereupon the court dismissed the same. So much of the decision and judgment, therefore, as adjudges the dismissal of these counterclaims upon the merits is unwarranted. As to the third counterclaim, the defendants introduced proof and the court dismissed the same at the conclusion of the defendant's case thereupon. The decision must therefore be modified by substituting in place of the third conclusion of law the following: "That the plaintiff is entitled to judgment against the defendants, Otto Lorence and Jacob Lazarowitz, dismissing the first and second counterclaims set forth and alleged in the answer of said defendants, and further dismissing the third counterclaim set forth in said answer upon the merits." The fourth conclusion of law in the decision should be modified by changing the second paragraph thereof to read as follows: "I therefore direct the entry of judgment in favor of plaintiff and against the defendants, Otto Lorence and Jacob Lazarowitz, dismissing the first and second counterclaims set forth and alleged in the answer of the said defendants, and further dismissing the third separate counterclaim set forth in said answer on the merits, with one bill of costs to all counterclaims awarded to the plaintiff against the defendants, Otto Lorence and Jacob Lazarowitz." The judgment should be modified by changing the first paragraph of the directory clause thereof as follows: "Ordered, adjudged, and decreed that the first and second separate counterclaims set forth and alleged in the answer of the defendants, Otto Lorence and Jacob Lazarowitz, be, and the same are, hereby dismissed, and further that the third separate counterclaim set forth in said answer be dismissed on the merits, and one bill of costs as to all counterclaims is hereby awarded *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes to the plaintiff against the defendants, Otto Lorence and Jacob Lazarowitz, to be taxed." As thus modified, the judgment appealed from will be affirmed, with costs to the respondent. All concur. LA SALLE v. FRIEDMAN et al. (No. 6513.) (Supreme Court, Appellate Division, First Department. December 4, 1914.) JUDGMENT (§ 948*)-PLEADING-SUPPLEMENTAL ANSWER-DEFENSES. An application for leave to file a supplemental answer, setting up a former judgment in bar of the action, made after the cause had reached the day calendar, should be granted only on condition that it be filed within five days, and, if plaintiff so elect, the cause retain its position on the calendar. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1787-1793; Dec. Dig. § 948.*] Appeal from Special Term, New York County. Action by Domonico La Salle against Charles Friedman and others. From an order denying motion to serve a supplemental answer, defendants appeal. Order reversed, and motion granted. Argued before INGRAHÁM, P. J., and LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ. David Steckler, of New York City, for appellants. Alexander Pfeiffer, of New York City, for respondent. SCOTT, J. The present action is to recover damages for the breach of a building contract; plaintiff alleging that he was employed by defendant to make certain additions and improvements upon a building, and that, after doing some work, he was unlawfully discharged. He filed a mechanic's lien, and on the same day began two actions, one to foreclose the mechanic's lien for work done and materials furnished, and the present one to recover damages. The action to foreclose the mechanic's lien was first tried, and resulted in a judgment for plaintiff, which has been paid. Defendant now seeks to set up that judgment as a bar. Without expressing any opinion as to the sufficiency of the plea, we think that defendant should be afforded an opportunity to present it in such a manner that it can be properly adjudicated upon, and tested on appeal. The defendant, however, has delayed this application for some eight months, and in the meantime the cause has reached the day calendar. The defendant should not be permitted to profit by his delay. The order appealed from will therefore be reversed, without costs, and the motion granted, upon condition, however, that the supplemental answer be served within five days, and, if plaintiff so elects, the cause shall retain its present position upon the calendar. All con cur. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |