Schwab Manufacturing Co. v. Aizenman

Citations

• 106 A.D. 478
• 94 N.Y.S. 729
• 1905 N.Y. App. Div. LEXIS 2611

Syllabus

<p>Chattel mortgage—failure to refile it what action must be taken by a subsequent creditor to give him priority oner it—• right of the holder of a second mortgage.</p> <p>Where, within - a year after the execution and filing of a chattel mortgage, a second chattel mortgage is executed covering the same property, the failure to refile the first mortgage at the expiration of the year, as required by sections 92 and 95 of the Lien Law (Laws of 1897, chap. 418, as amd. by Laws of 1901, chap. 219), does not render the first mortgage inoperative as against the second mortgage or make its lien subordinate ,to that of such second mortgage.</p> <p>While the failure to refile the first mortgage at the end of the year renders it unenf Orcible as against subsequent creditors, a subsequent creditor must, before he is in a position to assert the unenforcibility of the. mortgage as against him, invoke the judicial process of the court, either by levying upon the property under execution or by placing it in the custody of the court through the medium of a receiver.</p> <p>A second mortgagee may seize and sell, subject to the first mortgage, the mortgaged property.</p>