
    Joseph Levy and Emil Ackerman, Copartners Doing Business Under the Firm Name and Style of Joseph Levy & Co., Appellants, v. Benjamin Horn, as One of the City Marshals of the City of New York, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Chattel mortgages —'foreclosure of — chattel mortgage no valid inception until delivered — action against city marshal for conversion.
    A chattel mortgage has no valid inception until actually delivered and the date of signature and acknowledgment is immaterial if it affirmatively appears that the instrument was not delivered until later.
    Where a complaint is dismissed at the close of plaintiff’s case he is entitled to the most favorable inferences that can be drawn from the testimony.
    Where, in an action by the mortgagee of chattels against a city marshal for conversion under a levy- and sale under an execution issued upon a judgment in favor of a creditor of the mortgagor, direct testimony that the mortgage was delivered on its date was sufficient, if true, to require a judgment in favor of plaintiff, but on cross-examination such testimony was contradicted, it was for the jury to determine what part of the testimony was true, and a dismissal of the complaint was error.
    A vendee under a recorded conditional bill of sale may assign or mortgage such possessory title as he has.
    Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, entered in favor of the defendant, dismissing the complaint.
    Louis Halle, (Samuel J. Levinson, of counsel), for appellants.
    Leon Dashew, for respondent.
   Lehman, J.

The plaintiffs sue a city marshal for . the conversion of the fixtures of a butcher named Wiesinger by levy and sale under an execution duly issued upon a judgment in favor of a creditor of Wiesinger. The plaintiffs hold a mortgage on the fixtures sold. This mortgage was filed on June 9, 1914. The judgment under which the levy was made was obtained on June sixteenth and the execution was issued on June twentieth. The plaintiffs’ mortgage was dated, signed and acknowledged on March 18,1914, and if it actually was made on that date and recorded ten weeks thereafter it was void under the provisions of the Lien Law. Kurst v. Gane, 136 N. Y. 316; Tooker v. Siegel-Cooper Co., 194 id. 442.. The trial justice dismissed the complaint at the end of the plaintiffs’ case upon the authority of these cases. It does not clearly appear whether the dismissal of the complaint is based upon the view that under the law as laid down in these cases the mortgage came into existence when it was signed and acknowledged or whether the learned trial justice considered that the plaintiffs’ evidence conclusively established that the chattel mortgage was delivered on its date.

There can be no real doubt that a chattel mortgage like other instruments has no valid inception until actually delivered and the date on which it is signed and acknowledged is immaterial if it be affirmatively shown that it was not delivered until later. It is true that in the case of Tooker v. Siegel-Cooper Co., supra, the Court of Appeals has held that “ where it is put into the hands of a third party after execution upon no condition except that it shall not be delivered at all in the event of the payment of the debt before a specified date, and is subsequently delivered by him to the grantee we think that such delivery must be deemed to relate back to the date when the third party received it and that a delay of- nearly a month in placing it upon file was properly held by the trial court to be so unreasonable as to invalidate the mortgage against creditors.” A careful reading however, of that opinion shows that it is based upon the view that the delivery of the mortgage to a third party was.made only for the purpose of evading the provisions of the statute regarding filing and publicity of chattel mortgages. Inferentially it seems to me that the court regarded the rule as absolutely established that until there was a delivery either conditional or unconditional no mortgage was in existence. It follows that until that time the law could not possibly require the undelivered mortgage to be filed.

The really serious contention of the defendant, however, is that the plaintiffs’ own testimony shows conclusively that the mortgage was actually delivered on March eighteenth.

Upon this point one of the plaintiffs testified squarely that on June ninth he loaned to Wiesinger the sum of $154.63, giving him checks for that amount and that this sum with what Wiesinger then owed him made up the sum of $200 which is the amount of the mortgage and he received the mortgage on the same day. Undoubtedly this made out a prima facie case that the mortgage was delivered on June ninth. On cross-examination the plaintiff admitted that prior to March eighteenth Wiesinger owed him some money and that he was accustomed to obtain repayment of moneys loaned Wiesinger by retaining $10> each month out. of payments due to Wiesinger for goods furnished by him during the month; that on March eighteenth Wiesinger came to plaintiffs’ office and signed and acknowledged the mortgage before plaintiffs’ foreman. He also testified that after signing the mortgage Wiesinger handed it to him, though it does not clearly appear that the word “ after ” was understood by the plaintiff to refer to 'the time immediately instead of remotely subsequent to the time of signing. In any event, however, whatever may be the contradictions in the testimony given by the witness the plaintiffs are entitled upon a dismissal of the complaint to the most favorable inference that can be drawn from the testimony. The direct testimony was sufficient, if true, to require a judgment in favor of the plaintiffs; if the cross-examination contradicted the direct testimony it was for the jury to determine which part of the*, testimony was true and whether the witness understood the purport of the questions; jgrat' on cross-examination. The dismissal of the' complaint was therefore error.

The defendant also urges another ground for holding tlu chattel mortgage invalid, viz: that it appears that one of the machines covered by the mortgage was purchased by Wiesinger under a conditional bill of sale which was on record. While Wiesinger under that bill of sale undoubtedly did not theoretically possess legal title he did apparently have a right to possession and he had a right to assign or mortgage such possessory title as he had. See Moore v. Prentiss Tool & Supply Co., 133 N. Y. 144. Consequently the mortgagee had a right to maintain this action for conversion.

Judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event.

Guy and Whitaker, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellants to abide event.  