
    Astor Mortgage Company, Respondent, v. Milton Construction Company and Others, Defendants, Impleaded with Colwell Lead Company and Hudson Mantel and Mirror Company, Appellants.
    Second Department,
    June 21, 1912.
    Foreclosure—chattels annexed under subsequent contract of conditional sale — failure to refile conditional contract during pendency of action.
    Plumbing, mantels and mirrors, placed in a house under contracts of conditional sale duly filed, are not subject to the hen of a prior mortgage. Failure of the conditional vendor to refile his contract at the end of the year and during the pendency of the action, does not affect his rights as they existed at the commencement of the action.
    Appeal by the defendants, Colwell Lead Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of May, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, barring and foreclosing all rights and liens of the appellants in certain mortgaged premises.
    
      Henry Hetkin, for the appellant Colwell Lead Company.
    
      Samuel Bitterman, for the appellant Hudson Mantel and Mirror Company.
    
      Jacob Marx, for the respondent.
   Woodward, J.:

This action was brought to foreclose a purchase-money mortgage assigned to the plaintiff. The defendants Hudson Mantel and Mirror Comany and the Colwell Lead Company had, subsequent to the mortgage, furnished plumbing, mantels and mirrors used in the construction of certain houses upon the premises covered by the mortgage, but these materials had been placed under contracts of conditional sale, which contracts were duly filed according to law, and the question here presented is whether the plaintiff is entitled to hold these materials as a part of the mortgage security, or whether they belong to the appealing defendants.

So far as the Hudson Mantel and Mirror Company’s claim is concerned, it cannot be distinguished from the case of Barwin Realty Company v. Union Stove Works (146 App. Div. 319), and the judgment, in so far as it cuts off said company, should, of course, be reversed.

The only distinction we are able to discover between the claim of the Colwell Lead Company and that involved in the Barwin Realty Company Case {supra) is that while the defendant’s original conditional contract was duly filed as required by law, and was on record at the time of the commencement of the action, it appears that the same was not redocketed at the end of the year and during the pendency of the action. (See Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 62 et seq.) Just how this could operate to give the plaintiff a right to take materials which belonged to the defendant Col-well Lead Company at the time the action was commenced does not occur to us. The litigation relates to the facts as they existed when the action was commenced, and at that time the defendant had not parted with title. Being a party, to the action, the defendant, was not called upon to. redocket its conditional sales contract to preserve its rights, for title could not vest in the Milton Construction Company under the contract in any event, though a third party, dealing with that company without notice of the conditional contract, might gain rights which could not be divested.

The judgment, in so far as it affects the defendants Col-well Lead Company and the Hudson Mantel and Mirror Company, should be reversed, with costs, upon the authority of the case above cited.

Thomas, Carr and Rich, JJ., concurred; Jenks, P. J., not voting.

Judgment, in so far as it affects the defendants Colwell Lead Company and the Hudson Mantel and Mirror Company, reversed and new trial granted, costs to abide the final award of costs.  