
    The State Trust Company, as Trustee, Respondent, v. Casino Company and Others, Defendants ; Franklin Bien, as Receiver of Casino Company, Appellant.
    
      Refilling of a .chattel mortgage—not necessary to protect its lien on a leasehold interest in real property.
    
    The omission to refile, at the end of the year,- a mortgage executed by a corporation, other than a railroad, upon a leasehold interest in real property and also . upon chattels, which has been once duly recorded and filed as a chattel mortT gage, does not render the mortgage void as to creditors, as regards the leasehold interest, which is a chattel real and does not come within the scope-of the words “ goods and chattels,” used in chapter 379 of -the Laws of 1833.
    Appeal by the defendant, Franklin Bien, as receiver of the Casino Company, from a judgment of the Supreme. Court, entered in the office of the clerk of the county of Flew York on the -19th day of January, 1897, upon the decision of the court rendered after a trial at- the New York Special Term, except that portion thereof which dismisses the complaint as to the defendant A. Ryman Maxwell.
    
      Franklin Bien and Alfred Lyons, for the appellant.
    
      Moses Weinmcm and Samuel Untermyer, for the respondent.
   "Williams, J.:

The mortgage being foreclosed was made by the defendant company to secure bonds issued by it. The mortgage covered a leaseliold interest in real property and movable chattels, consisting of scenery, costumes and other theatrical appliances. The lease was a "valuable one; the term was ten years and the rent $12,000 per year; the date of the lease was May 1, 1892, and of the mortgage September 29, 1894. The mortgage was recorded October 9, 1894, and was filed as a chattel mortgage the same day. It was not refiled as a chattel mortgage at the end of the following year, and thereupon ceased to be valid as against the creditors as a lien upon the movable chattels covered thereby. The appellant represents the creditors of the defendant company, and claims that the mortgage ceased to be a valid lien upon the leasehold interest by reason of the failure to refile it at the end of the year. The court held to the contrary, and the judgment directed sale of the leasehold interest and an application of the proceeds of the sale to the payment of the bonds secured by the mortgage. Upon a former appeal this court held that the mortgage ceased to be a lien upon the movable chattels covered by it, .by reason of the failure to refile it as a chattel mortgage at the end of the year. The question as to whether the mortgage ceased to be a lien upon the leasehold interest by reason of such failure to refile it was not" involved in that appeal. It is said by the appellant here that this court, upon the former appeal, expressed. the opinion that such leasehold interest was within the terms of the chattel mortgage statute, and that the mortgage ceased to be a lien upon the leasehold interest at the end of the year by reason of the failure to refile the mortgage. We do not so. understand it. The language used by the court, and which is claimed as the expression of such opinion, was with reference to the statute relating to the filing of chattel .mortgages made by corporations. (Chap.- 529, Laws of 1895, amending chap. 779, Laws, of 1868.) That statnte related to mortgages by railroad corporations. The language of the act as amended is: “ It shall not be necessary to file or refile as a chattel mortgage any mortgage creating a lien upon real mid per^ sonal property which has been, or shall hereafter be, executed by any corporation,” etc. .This court held that that statute was restricted to railroad mortgages, but not even if so restricted, still the mortgage, in order to come within the' provisions of the statute, would have to "be one covering both read and personal property,, and that a mortgage upon leasehold interests. was not a mortgage upon read properpy:. No suggestion was made as to "whether leasehold .interests were covered by. the chattel mortgage statute in question and the words therein goods and ohattels. ■ The question here involved relates solely, to the meaning of the words goods and chattels in the chattel mortgage statute ■ (Chap. 279 of the Laws, of 1833), and whether these words coyer and include leasehold interests in real property.. Such leasehold interests, are personal property, but this term personal property is. not .used in this chattel mortgage statute. Leasehold interests are chattels real, and not mere chattels. They are covered by the statute respecting the- record of conveyances of real estate, the language used being, the term real estate sháll "embrace all chattels real, etc.,” and the term conyeyance ” shall embrace every instrument in writing by which any estate or interest'in real property is created, aliened, mortr gaged or assigned. (1 R. S. 762, §§ 36, 38.) The Statutory Construction Law (Chap. 677, Laws of 1892) in no way- changed the classification of leasehold interests. . They were regarded as chattels real and personal property prior to the act of 1.892, the same as they are now, while- at the same time they were covered by.the. provisions of the recording acts. The Court of Appeals in Booth v. Kehoe (71 N. Y. 341) correctly construed the chattel mortgage statute, the same now as before the passage of the Statutory Construction Law' of 1892.... It was then held that'this statute had-no relation to leases • of real estate, but only to movable goods and chattels; that the statute related only to such goods and chattels as were capable of an' immediate delivery and of an actual and continued change, of possession of the things mortgaged.

The trial court was clearly right in its interpretation of the.-words in the statute, and in holding that the statute did not cover the leasehold interest.

The judgment appealed from should be affirmed, with costs.

Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  