
    Hoffman House, New York, Respondent, v. Rose L. Barkley, Substituted as Defendant in the Place and Stead of the Manhattan Storage and Warehouse Company, Appellant, Impleaded with Others. (Action No. 2.)
    First Department,
    March 9, 1906.
    Mortgage evidence' insufficient to show that a painting was covered by mortgage" on hotel property.
    When it is 3: question-whether a certain painting called “ Love’s Surprise ” by -Scalbert was covered’ by a mortgage executed by the'president of a hotel coi> poratióñ, through the-foreclosure of which the plaintiff claims title, the mere . fact that the schedule of property annexed to said mortgage included a.“ .paintr ing by Scalbert” is not.sufficient,to prove that- “Love’s Surprise” was the painting intended, when, the other evidence shows that said president had been in possession of said painting and treated it-as his private property.
    O’Bbien, P, J., and Laughlin, J., dissented, with opinion..
    Appeal, by the defendant, ¡Rose L. Barkley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of March, 1905, upon the decision, of the court rendered after a • trial at the New York Special Term. -
    
      John J. Kirby, for the appellant.
    
      Albert A. Wray, for the respondent.
   Ingraham, J.:

■ The nature of the action is stated in the opinion of Mr. Justice Laughlin. We do not concur in his conclusion as-we think the evidence ■ Was not sufficient to justify a finding that this painting, called “ Love’s Surprise/’ ever was the property of C. II. Bead, & Co. or their successors, the Hoffman House corporation. The fact that in .a schedule annexe'd to a mortgage by: the corporation there-was included a painting by Scalbert was not sufficient to justify a finding that this particular painting sued for was ever the property of the plaintiff or of the, corporation to whose rights it succeeded.' The painting is in - the possession of the defendant, and to justify this judgment there must be competent evidence of its ownership by the plaintiff. The evidence shows that Stokes, always treated this painting as his private property ; that it was never in the hotel proper or treated by either the copartnership or its.successor as hotel property.

We think, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.

Patterson and Clarke, JJ., concurred; O’Brien, P. J., and Laughlin, J., dissented.

Laughlin, J.

(dissenting):

This is an action to recover the possession of an oil painting by Scalbert, known in the art world by the title, “ Love’s Surprise.” Prior to the commencement of the action the painting had been stored with the Manhattan Storage Warehouse, from which it was replevied herein and delivered to the plaintiff. The action was originally brought against the warehouse company and one Ella Harthorne, but after the seizure of the painting under the writ of replevin the appellant was substituted in place of the former defendants. The painting was in the possession of Edward S. Stokes, at his residence in Seventy-ninth street, at the time of his death on the 2d day o£ Hovember, 1901. The appellant claims that the title thereto also was in him,.and she claims title through him, or a right to possession as his widow. The plaintiff claims title by purchase on a foreclosure sale on the 25th day of May, 1894, under a mortgage given by the Hoffman House Company of Hew Jersey to the Farmers’ Loan and Trust Company as trustee, executed in behalf of the company by said Stokes, as its president, on the 2d day of September, 1890. The mortgage recited that the mortgagor had acquired from the firm of C. H. Bead & Co. “ the ownership and title to the fixtures, chattels, assets and property” theú “ owned and used by it in its business of conducting hotels and restaurants in the .City of Hew York” at certain specified places, including “The. Hoffman House, at Broadway and Twenty-fifth Street,” and had agreed as part payment .therefor to execute and deliver a series of 500 bonds of the par value of $1,000 each, secured by a mortgage upon the property, and that" the mortgage was given pursuant to said agreement. The property covered by the ^mortgage consisted of fixtures and other personal property and leases described im schedules annexed to the mortgage. The mortgage, after enumerating the schedules'and making them a part thereof, contained the following provision : “ It being intended hereby to convey unto the said party of the second part all the property, assets and effects of every kind .and nature whatsoever, now owned and,used by the said party of the first .part (the mortgagor) in and about its said business, wheresoever the same may he situated, and whether inblnd'ed in the. schedules'hereto annexed or omitted therefrom, together with all the fixtures, assets, property and chattels-hereafter to be acquired by it in the conduct of its business, either in addition to, or in suhstitution of, the property now owned by it, and .such’after,-acquired property ..shall be deemed to be embodied in and subject to the lien of this mortgage, even though not specially .designated therein.” In Schedule C, specified in and annexed to the mortgage, there was enumerated rmder the heading “ The Hoffman House,” among other paintings and property, the followingPainting, by Scalbert.” The description of the propérty in the judgment of foreclosure and in. the bill of sale executed' by the referee, so far as material to the decision of the question presented-by tiiis appeal, at; least, was the same as in the mortgage.

Since the appellant’s only claim of title or right to possession is through Stokes, who as president of the Hoffman House Company of New Jersey executed" the mortgage, it is manifest that the only question presented by the appeal is whether the painting “ Love’s Surprise,” by Scalbert-, was1 covered, by the mortgage.. The eyi-. deuce shows that at, the time the .mortgage was executed this -painting was,-hangin'g on the wall in the private apartment of said Stokes, situated in the Worth House, which was used as" an annex tojthe Hoffman House, and that another painting, Faust’s Dream,” by Falero, definitely described in and clearly co'vered by the mortgage and owned by the -mortgagor, and still others the ownership of which was not shown "and not-shown to have been or not to have been covered by the mortgage, adorned the wails. of the same apartment. It-does not appear that "any other painting by Scalbert was" included in the mortgage, or that any other painting, 'by Scalbert was in -the apartment or, in the Hoffman House or the Worth House^ or whether or not there was any other painting by Scalbert in existence.,' It appears that Stokes continued to live .at the Worth House until. 1894 or 1895, and then moved into the Hoffman House proper, where he remained until September, 1897, when lie sold his stock in, and severed official connection with, the plaintiff and moved, uptown. " •

It is claimed by the learned counsel for the appellant that the evidence was insufficient to identify this painting as the one referred to in the mortgage. It is to be borne in mind that no lights of creditors are involved. The question is to be decided as if Stokes were here claiming that the mortgagee could not claim this painting under the mortgage. It is evident that the mortgage covered some painting by Scalbert. This painting was there and it was painted by Scalbert. It is reasonable to infer that if there had 'been another painting by Scalbert in Stokes’ apartment and owned by him, or on the premises used for hotel purposes and not intended to be embraced in the mortgage, a inore definite description of the painting intended to be mortgaged would have been inserted in the schedule. There is no definite evidence either that this painting was owned by Read & Co., or that it was used in connection with the hotel business, prior to the execution of the mortgage through the foreclosure of which plaintiff claims title, other than its use in the private apartment of the president of the hotel company as aforesaid. There is some evidence that subsequent to the execution of the mortgage, and in 1892 or 1893, the painting was hanging on the wall over the, Hoffman House bar, and that when Stokes moved from the Worth House into the Hoffman House it was brought there, with other effects of his, and hung on the wall of one of the rooms occupied by him as his' private apartments. But this is somewhat vague, and it is not corroborated by the testimony of .witnesses who should have been able to corroborate it if true, and is controverted by the testimony of other witnesses.

We are of opinion, therefore, that the only theory on which the judgment can be sustained is that Love’s Surprise” is the painting described in the schedule annexed to the mortgage and in the foreclosure proceedings as a “ painting •'by Scalbert.” The evi-, dence on that point, as has been seen, is meagre, and it would seem that, it could have been made more conclusive. We think, however, that, from all the facts and circumstances, the inference that it is the painting covered by the mortgage and purchased by the plaintiff on the sale under the judgment of foreclosure is fairly justified. If so, flie removal of the painting to. Stokes’ private residence was wrongful,' and, therefore, nó demand was necessary. After Stokes severed his connection with the plaintiff, and moved from the Hoffman-House, the plaintiff became involved in important. litigation with him, and it does not appear that'the officers of the plaintiff knew where the painting was. - In these Circumstances, the failure to commence the action until after his death was 'a fact having little bearing on the merits of the case.

We have examined the other exceptions, but they do not merit special mention.

It follows that the judgment should be affirmed,, with costs.1

O’Brien, P. J., concurred.

Judgment reversed, new trial ordered,, costs to appellant to abide event,  