
    The Canton Surgical & Dental Company, Resp’t, v. William Webb, App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed January 4, 1892.)
    
    Sale—Conditional—Filin» of contract.
    The provisions of the statute in relation to conditional sales make the same, in case of failure to file the contract, absolute only as against subsequent purchasers and mortgagees in good faith, and not as against creditors or mere pledgees.
    Appeal from a judgment rendered in the district court of the city of New York for the eighth judicial district.
    
      Q. P. Havens, for resp’t; John D. Townsend, for app’lt.
   Bookstaver, J.

This action was brought to recover possession of a dental chair sold by the plaintiff to one John A. Mc-Clelland, about December 1,1890, to be paid for on the instalment plan; title to remain in the plaintiff until the chair was fully paid for. Before that time McClelland had hired a room of the defendant where he used to carry on his business as a dentist. On the 17th of December he owed the defendant about forty dollars for rent, which was demanded of him and which he declared he was unable to pay at that time. Then Mrs. Webb, acting for her husband, the defendant, asked for security if he desired to remain. He offered her as security the chair in question and some trunks, and represented that the chair had cost him $100 in cash and an old chair. Mrs. Webb testified that she accepted the chair and trunks as security and allowed him to remain, and also to keep possession of the security. In January, 1891, the indebtedness for rent had run up to about ninety dollars, and then McClelland was asked to give a chattel mortgage on the chair and other property which he had offered as security, but this he adroitly avoided doing, and upon being pressed for payment undertook to move his property from the premises through the window instead of out of the front door, but was prevented by the defendant After this, the plaintiff, by its agent, demanded the chair of the defendant, and on refusal brought this action.

On the trial it appeared that only ten dollars had been paid bv McClelland on account of the chair. Therefore, under Cole v. Mann, 62 N. Y., 1, and Ballard v. Burgett, 40 id., 314, the title still remained in the plaintiff as between McClelland and his creditors.

It was doubtless to remedy this state of the law respecting conditional sales that chapter 315, Laws of 1884, under which defendant claims the right to hold the chair as against the plaintiff, was passed. But that act provides that conditional sales of goods and chattels shall be deemed absolute, unless the contract, or a copy thereof, be filed as therein designated, as to two classes of persons only, and they are subsequent purchasers and mortgagees in good faith. It does not include the creditors of the debtor, as do the statutes relating to fraudulent conveyances and the filing of chat- ■ tel mortgages. Whether this omission was intentional on the part of the legislature or not we have no means of ascertaining, and can only construe the law as it stands. The defendant was not a purchaser; he does not claim to be. We think it is equally clear he was not a mortgagee. In his answer the defendant claims the right to hold the chair as security or pledge for a debt, and we think the testimony fully establishes that he was a pledgee, and not a mortgagee. There is a wide difference between a mortgage and a pledge. In the first case the title passes subject to being divested by the fulfillment of the conditions of the mortgage ; in a pledge the title does not pass. In a mortgage the possession may or may not pass; but in a pledge it must pass to the pledgee, or he loses his lien. Such obvious and well-known distinctions we do not think were overlooked by the legislature, and we see no possible way by which a mortgage can be construed to include a pledge.

The judgment should therefore be affirmed, with costs. Were the latter in our discretion, we think under the circumstances of this case we would not grant them, but we conceive that under §§ 3067 and 3213 we have no discretion in the matter.

Bischoff, J., concurs.  