
    Hamilton H. Salmon and Richard Brandt, Respondents, v. Emcline H. Arents, Individually and as Administratrix, etc., of Charles R. Arents, Deceased, Appellant.
    
      Chattel mortgage—failure to file renewal thereof— effect of such failure on rights of creditors of mortgagor.
    
    Judgment affirmed, with costs.
   Ho opinion. Gaynor, -Rich and Miller," JJ., Concurred; Hooker, J., read for reversal, "with whom Jenks, J., concurred. Appeal by the defendant from a judgment of tlie Supreme Court, entered in the office of the clerk of the county of Kings on the 4th day of March, 1905, in favor of the plaintiff's.

Hooker, J. (dissenting):

This is an appeal by the defendant individually and as administratrix of the estate of her deceased husband, Charles R. Arents, from a judgment of foreclosure of a chattel mortgage'in favor of plaintiffs, copartners. The mortgage was duly executed by tlie deceased and filed in the proper office oirthe 12tli day of July., 1-901. A renewal .statement was also filed in the proper'office on or about tliq 10th day of July, 1902. The mortgagor died on the 2d day of August, 1902; and there is ho proof or finding that arenewal statement or a copy of the chattel mortgage was filed within thirty days before the expiration of twelve months after the last renewal. The provisions of the Lien Law (Laws of 1897, chap. 418) in relation to the filing of chattel mortgages are a substantial re-enactment of section 1- of chapter 287 of the Laws-of 1-833. The statutory provision is that in the absence of the filing of a statement containing a description of a mortgage or a copy of such mortgage, and its indorsements, together with a statement showing the interest of the mortgagee, etc., a chattel mortgage becomes void as against creditors. The defendant represented the creditors of 'tlie estate of her deceased husband, as well as the next of kin, and ydiile there is no intimation in the evidence or in the findings that there are creditors aside from the plaintiffs, such is the presumption. Wc recently held in Huyler v. Dolson, Nos. 1 & 2 (101 App. Div. 83), that until rebutted the presumption exists that there arc creditors for whom an executor holds the personalty of his decedent’s estate in trust. The same rule, of course, applies where the deceased left no will and the estate is under the contz-ol of an administrator. It is urged that in the absence of proof that creditors had reduced their claims to judgment, the administratrix may not have the benefit Of the statute. It is held, however, that a simple contract creditor is as much within the protection of the statute as where his debt has been reduced to judgment. (Karsty v. Gane, 136 N. Y. 316.) The Couz't of Appeals has recently on that subject said: “ It. is argued on behalf of the plaintiff that at the time the defendazits took possession of the property^ under their chattel mortgage they were siznple contract creditors and in no position to attack the plaintiff's mortgage or possession. This court has held that a siznple contract «•editor is as much within the protection of the statute as a creditor whose debt has been mez'ged in a judgment.” (Russell v. St. Mart, 180 N. Y. 355, 359.) In these cases the statute of 1833 was under consideration. The general creditors in this estate outside of the plaintiffs are represented by the administratrix, who has been appointed by a competent court, has possession of the property, appears for the benefit of all creditors, and opposes the action to foreclose the mortgage on the ground that by reason of the non-filing of a copy or statement described by the statute it is void as against creditors. She is the trustee for the benefit of the persons interested in the estate, and under familiar principles may for the benefit of such creditor's or others interested in the estate “disaffirm, treat as void, and resist all acts done, transfers and agreements made, in fz'aud of such pei'sons’ rights.” (Russel. Surr. [5th ed.] 411.) For these reasons the judgment must be reversed and new trial’granted. Jenks, J., concurred. 
      
      Laws of 1833, chap. 279, as amd., was re-enacted in-Lien Law (Laws of 1897, chap. 418), § 90 et seq., as amd.- Sec Laws of 1833, chap. 279, §3, as amd. by Laws of 1896, chap. 528, and re-enacted in Lien Law, § 95, as amd. by Lavvs of 1901, chap. 219.— [Rep.
     