
    Samuel Bauman, Respondent, v. Meinhart Kuhn, Charles Dochtermann, Charles Dochtermann, Jr., Frederick Dochtermann and Paul Dochtermann, Appellants.
    (Supreme Court, Appellate Term,
    February, 1908.)
    Chattel mortgages — Foreclosure — Methods of foreclosing — Action in Equity — Parties — Effect of nonjoinder.
    Parties — Objections and waiver thereof — Waiver of objections — Nonjoinder of parties.
    A chattel mortgagor who after default removes the property to a storage company without the consent of- the mortgagee should be made a party defendant in an action to foreclose -the mortgage.
    Where the objection of nonjoinder of the mortgagor as a necessary party defendant is not raised either by demurrer or answer nor in -any way presented at the trial it will be deemed to have been waived; it cannot be urged for the first time on appeal from the judgment.
    Where the only effect of the nonjoinder of one as a party defendant is that the judgment will not be binding upon him, the'court is not ousted of jurisdiction as to those made parties to the action.
    A mortgagee, upon default in the payment of the mortgage, becomes the absolute owner of the chattels and entitled to the immediate possession thereof as against warehousemen with whom the chattels were stored by the mortgagor after his default.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, twelfth district, borough of .Manhattan.
    I. L. Broadwin, for appellants.
    Phillips & Samuels, for respondent.
   Gildersleeve, J.

The defendant Kuhn purchased from plaintiff certain household furniture; and, as security for the payment of the purchase price, he executed and delivered to plaintiff a chattel mortgage thereon, which was duly recorded. Said Kuhn failed to make the payments required by the mortgage and, subsequently to such default and to a demand by plaintiff, stored the goods with defendants Docktermann, who are warehousemen, without the knowledge or consent of plaintiff. Plaintiff demanded the return of the goods from said Dochtermann, who refused to surrender them, claiming a warehouseman’s lien thereon. Plaintiff brought this action to foreclose the lien of his mortgage, and obtained judgment in his favor. Defendants Dochtermann appeal. The goods were stored in the name of Kuhn, and Dochtermann had no knowledge of the chattel mortgage, except such constructive knowledge as arose from the fact that the mortgage was duly filed in the register’s office. Kuhn was not served with process and has not appeared in the action. The rule is that, where the chattels have been removed by the mortgagor to a storage company, without the consent of the mortgagee, after the default of the former and a demand on the part of the latter, and an action to foreclose the lien of the mortgage is brought against the storage company in the Municipal Court, the mortgagor should be made a party defendant, since he has a right of redemption, which may have a substantial value, although he has lost all title and right of possession by his default; and he should also be made a party for the protection of other interests, so that he may be bound by the judgment. Fishel v. Hamilton Storage Warehouse Co., 42 Misc. Rep. 532. However, the objection of nonjoinder was not raised, either by demurrer or answer, nor was it in any way presented to the trial court, but is raised for the first time on appeal. It must, therefore, be deemed to be waived. The -mere fact that necessary parties are not before the court upon the - trial of the action does not oust the court of jurisdiction, as far as such persons are concerned who were made parties to the action; and the only effect of such omission is that the judgment is not'binding upon the party who has been omitted. Keyes v. Ellensohn, 82 Hun, 13; affd., 144 N. Y. 700. The defense of the defendant warehousemen is based upon section 2 of chapter 608 of the Laws of 1902 (since repealed by chapter 732 of the Laws of 1907), which, so far as applicable, provides as follows: “A warehouseman shall have a lien upon goods stored with him for storage. * * * Such lien of a warehouseman shall he prior and superior to the lien of a chattel mortgage, * * * where the chattel mortgage is not made in the name of the depositor * * * and the warehouseman has not actual knowledge of the chattel mortgage.” The inference to be drawn from the wording of the statute seems to he that actual knowledge is essential when the chattel mortgage is not made in the name of the depositor, and where no constructive knowledge of such mortgage on the part of the warehouseman can be predicated on the facts. In the ease at bar the chattel mortgage was, as we have seen, made in the name of the depositor, i. e., Kuhn, and the warehousemen had that constructive knowledge of such mortgage that arises from the fact that the same was duly filed in the register’s office. It therefore appears that the statute, whether unconstitutional or not, does not apply to the defendants’ lien which, therefore, comes within the general rule that, when the mortgagor in a chattel mortgage makes default in the payment of the sum due, as required by the mortgage, the mortgagee becomes the absolute owner of the chattels and entitled to the immediate possession thereof, having the right to take it from any one who holds the chattels by any title subordinate to his mortgage.

The judgment should he affirmed, with costs.

Seabury and Gerard, JJ., concur.

Judgment affirmed, with costs.  