
    Crouse et al. v. Johnson, Sheriff, et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1892.)
    1. Chattel Mortgages—Piling—What Constitutes.
    Under Laws 1833, c. 279, § 2, which requires clerks to file all chattel mortgagee which are presented for that purpose, and to indorse thereon the time of receiving the same, and deposit them in their office for inspection, neither an attempt to enter the office when it is closed, nor a deposit of the mortgage on the clerk’s- table; when no one is present, constitutes a valid filing.
    2. Levy under Void Judgment—By Confession—Liability of Constable.
    Code Civil Proc. § 3011, provides that where a judgment, confessed before a justice of the peace, is for a sum .exceeding $50, an affidavit ¿must be filed, alleging that the confession was not made “or taken” with intent to defraud any creditor. Held that, though the omission from the affidavit of the words “or taken” may-render such a confession void as to every One except a purchaser in good faith of property thereunder and defendant making the confession, still a constable is protected where he makes a levy under an execution, regular on its face, and issued! by the justice in virtue of such a judgment.
    Appeal from circuit court, Onondaga county.
    Replevin by George N. Crouse and Robert E. Bentley against Hector B~ Johnson, as sheriff of Onondaga county, and Philander Wilson. From two; judgments,—one in favor of defendant Johnson, entered May 22, 1891, and! the other in favor of defendant Wilson, entered June 12, 1891,—and from am order denying a new trial, made on the minutes of the trial judge, plaintiffs-, appeal. Affirmed.
    On the trial, at the close of the evidence, the court held that so far as the-executions in the hands of the respondent Wilson, as constable, were concerned, there was but one question, and that was the amount of his special, lien on the property; and that, so far as the respondent Johnson, the sheriff,-, was concerned, the only question was as to the value of the property taken by him. The ease was thereupon submitted to the jury, who found for the defendants.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      J. E. Newell, for appellants. J. Charles Meldram, for respondent Johnson. Charles R. Milford, for respondent Wilson.
   Martin, J.

This action was replevin. The plaintiffs claim title to, and! the right of possession of, the property in question under and by virtue of a. chattel mortgage executed and delivered to them by James Thurlow, Jr. The-defendants claim to have a special property in the goods and the right of possession under and by virtue of levies made thereon under executions in their hands against Thurlow. The defendant Johnson was sheriff of Onondaga, county, and Wilson was a constable of the town of Skaneateles. On March 10,1890, to secure the payment of a debt of $400, Thurlow made and delivered to the plaintiffs a chattel mortgage on certain personal property, consisting of goods and fixtures, in what was known as the “Brick Store,” and also on certain other goods and fixtures in a saloon, both of which were in the village of Mottville. At that time Thurlow resided, and the property in question was. located, in the town of Skaneateles. On March 10th the plaintiffs’ mortgage was sent by mail from Syracuse to George Barrow, Esq., at Skaneateles, to-have it filed in the office of the town clerk of that town. It was received by ■ Barrow in the forenoon of March 11th. He went to the office of the town-clerk at about 12 o’clock m., and about 4 o’clock p. m., and on both occasions found the office closed. At half past 7 o’clock p. m. he again went to t lie-clerk’s office, found it open, but no one present. He then placed the plaintiffs* mortgage on a desk- in the office of the clerk, with his fees for filing, and left.the following memorandum on the face of the paper: “File for George Barrow. ” There was no evidence that the mortgage came to the notice of the town clerk until the next morning at about 8 o’clock, when he took ife from his table, and marked it as filed at that time. The clerk testified that The first saw the mortgage when it was filed by him. On the 11th day of -March, at 3 o’clock and 45 minutes p. m., the sheriff, under arid by virtue of ■an execution or executions issued against Thurlow, duly levied upon the goods and fixtures in the brick store, and took possession of them. On the '•evening of the same day Thurlow confessed judgments to three of his creddtors before a justice of the peace of the town of Skaneateles, and executions ■were issued thereon in due form, and delivered to the defendant Wilson, who, 'by virtue thereof, levied upon and took possession of the goods and fixtures in the saloon.

The most important question in this case relates to the filing of the plaintiffs’ chattel mortgage. That it did not in fact come to the hands of the «clerk until after both defendants had made their levies upon the property in •question is not denied. If it was not filed until the clerk actually received at and made the indorsement required, it seems to be conceded by all that the judgments appealed from were proper, unless the judgments confessed, and under which the defendant Wilson levied, were void. The latter ques-tion will be separately considered. Hence the precise question we are to consider first is whether the attempt of the plaintiffs to have their mortgage filed «amounted to a filing within the requirements of the statute. Laws 1833, c. 279, § 2. While it has been held that it was not a sufficient filing of a chattel mortgage to deliver it to the town clerk when absent from his office, although he indorsed the same as filed when he received it, (Hathaway v. Howell, 54 N. Y. 97,) and that, if there be no clerk, or if he be absent, the mortgage may be filed with the «person in charge of the office, (Bishop v. Cook, 13 Barb. 326; Dodge v. Potter, 18 Barb. 193,) still we have been cited to no case, and have found none, that would justify us in holding that an unsuccessful attempt to file a chattel mortgage when the office was closed, -or depositing a mortgage on the clerk’s table in tbé office when no one was present, would constitute a filing within the requirements of the statute. "The statute requires clferks to file all chattel mortgages that are presented to them for that purpose, and enter thereon the time of receiving the same, and to deposit them in their office for inspection. To constitute a proper filing requires the act of the clerk or some person in charge of the office. To hold •that an unsuccessful attempt to enter the office, or the leaving of a paper :therein, constitutes a filing, is not, we think, justified by the statute. A •chattel mortgage is filed within the meaning of the statute when it is deliv•sered to, received, and kept by the proper officer, or some one in charge of the -office, for the purpose of the notice the statute intended should be given. 7 Amer. & Eng. Enc. Law, 961; Mill Co. v. Warder, 42 Minn. 117, 43 N. W. Rep. 791. We think the court properly held that the plaintiffs’ mortgage jwas not filed until received by the clerk.

'This leads us to the consideration of the question of the validity of the .^judgments confessed, and, if invalid, whether such invalidity affects the parities to this action. The Code of Civil Procedure, § 3011, provides that where • .a judgment, confessed before a justice of the peace, is for a sum exceeding :-$50, the confession must be accompanied with an affidavit of the defendant mnd plaintiff that the defendant is honestly and justly indebted to the plain•.tiff in the sum specified therein over and above all just demands which the -..defendant has against the plaintiff, and that the confession is not made or taken with intent to defraud any creditor. The affidavits accompanying the confessions involved in this case all omitted the words “or taken,” so that r-the affidavits were simply that the confessions were not made with intent to i defraud. We are disposed to think the omission may be fatal to the validity ■ -of :fche judgments confessed, except as against a purchaser in good faitli of "property thereunder and the defendant making the confession. Code, § 3012. Assuming that the judgments confessed were invalid except as to the defendant and purchasers in good faith, the question as to the effect of such invalidity upon the rights of the parties to this action becomes important. It must be remembered that the defendant Wilson, who alone is affected by this question, was a constable, and had levied upon and then held possession of the goods taken by him under and by virtue of executions issued by the justice, which were in all respects regular upon their face. To sustain his right of possession to the goods taken by him, the defendant Wilson invokes the rule that ministerial officers are protected in the execution of process regular upon its face, issued by a court or officer having general jurisdiction of the subject-matter, or jurisdiction to issue it under special circumstances, although in fact jurisdiction of the person or subject-matter did not exist. Woolsey v. Morris, 96 N. Y. 311, 315; Bodine v. Thurwachter, 34 Hun, 6; Livingston v. Miller, 48 Hun, 232. The foregoing rule svems to be well settled in this state, and is, we think, applicable to this case. Hence, it follows that the defendant Wilson was entitled to the possession of the property in question as against the plaintiffs, and the court properly disposed of the case at the trial. If these views are correct, it follows that the judgments and order appealed from should be affirmed.

Judgments and order affirmed, with costs. All concur.  