
    Nicholas Herder, Resp’t, v. Waldemar H. Walther, Impl’d, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed February 3, 1890.)
    
    Chattel mortgage—Cannot be revived after failure to refile.
    A chattel mortgage wbicbis not refiled ceases to be valid as against bonafide purchasers or creditors, and cannot thereafter be revived as against them, This rule is settled by Marsden v. Cornell, 62 N. Y., 219.
    Motion for leave to appeal to the court of appeals from the affirmance of a judgment entered in this court on an appeal from the equity term, the amount involved being less than $500.
    
      Jeroloman & Arrowsmith, for motion; H. A. Sperry, opposed.
    
      
       See 27 N. Y. State Rep., 985.
    
   Per Curiam.

The only ground for this motion is the fact that Nixon v. Stanley, 33 Hun, 248, based upon Swift v. Hart, 12 Barb., 530, is contrary to the decision of the general term of this court in this case, and it is claimed that there is no decision of the court of appeals decisive of the question involved here, and this notwithstanding the decision of the court of appeals in Marsden v. Cornell, 62 N. Y., 219. In the latter case that court expressly holds that on a failure to file a true copy of a chattel mortgage, together with the statement required by law, within thirty days next preceding the expiration of the year, the mortgages cease to be valid against subsequent bona fide purchasers or creditors. In the course of that decision the court notices Swift v. Hart, supra, and states that so far as that case conflicts with the opinion then delivered, it was not approved by thát court. Row Swift v. Hart proceeds upon the theory that a chattel mortgage, after the expiration of the year, becomes dormant as' respects bona fide purchasers and creditors, but that such instrument may be revived by refiling it after the expiration of the year. This we think in direct conflict with Marsden v. Cornell. A dormant instrument may be revived and made effectual by the acts of the parties, but an instrument which has ceased, to be valid cannot be thus revived by any act of the parties to it.

The motion for leave to go to the court of appeals should, therefore, be denied, with ten dollars costs.

Bookstavee and Bischoff, JJ., concur.  