
    Otto W. Wuertz, Appellant, v. Irma Braun, Respondent, Impleaded with Isidor Braun, Defendant.
    Second Department,
    November 29, 1907.
    Chattel mortgage — foreclosure — defenses available to third party in possession.
    The wife of one who has given a chattel mortgage upon a piano to secure the payment of the purchase price, who, after being deserted by her husband, is made defendant in an action of foreclosure without prayer for personal judgment against her, cannot defend except upon the ground that she is not in •possession. When her possession and the default in payment are undisputed, the mortgagor is entitled to a judgment of foreclosure, irrespective of whether the defendant or her husband executed the mortgage.
    Appeal by the plaintiff, Otto W. Wuertz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant.
    
      C. Bertram Plante, for the appellant.
    No appearance for the respondent.
   Hooker, J.:

This action is to foreclose a lien on a piano. The appeal is by the plaintiff from a judgment dismissing the complaint upon the merits.. The ease was before this court on an appeal from a judgment dismissing the complaint at the first trial ( Wuertz v. Braun, 113 App. Div. 459), and we then held that the plaintiff made out a ¡prima faeie case and should not have been dismissed.

The defendant Irma Braun is the wife of the defendant Isidor Braun ; she alone was personally served and alone answers. Her husband deserted her between the time of the purchase of the piano and the commencement of- the action.

The facts which were admitted by the defendant entitle the plaintiff to a judgment of the foreclosure of his lien. "Irrespective of the evidence offered on behalf of the plaintiff it appears from the evidence of the defendant and admissions made by her that she talked with the plaintiff about the purchase of a piano by her husband as a present for her son; that the piano was delivered at her house to her husband, who at that time paid ten dollars on account' of the purchase price and executed the chattel mortgage in evidence for the foreclosure of which this action was brought; that some payments have been made on the purchase price, but she is unable to state the exact status of the account; that when her husband abandoned her she went into possession of the piano and it is now with her parents. The record shows indisputably that at the time of the commencement of the action the piano was in her possession, and failure to consent to a sale for the purposes of applying the proceeds in payment of the amount due is evident from, the fact, that upon her motion an order was made in the Municipal Court, soon after the commencement of the action, vacating a warrant of - seizure which had theretofore been executed.

The plaintiff sold the piano, the purchase price was not .all paid, he took a chattel mortgage to secure the balatice.; there was due at the day of the trial the sum of seventy-seven dollars and' ninety cents, and the plaintiff is entitled to the foreclosure of his lien irrespective of whether the answering defendant or her husband executed the chattel mortgage. The complaint does not demand any personal judgment against the answering defendant, and it is, therefore, evident that the only possible defense that she could urge was that she had not been in possession. But the piano was seized at the time the action was commenced while under her physical control, and her only defense fails.

The judgment should be reversed and a new. trial ordered, costs to abide the event.

ITirschberg, P. J.5 Woodward, Jenks and Milleb, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  