
    Abigail Allen, App’lt, v. Albert Heine et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Chattel mortgage—Title to chattels.
    In. an action to recover a steam engine, to which plaintiff claimed title by purchase at foreclosure sale, under a chattel mortgage made by defendants A., and defendant H. by purchase from one B., it appeared that defendants A. desiring to procure ah engine, H. offered to put one in and remove it if unsatisfactory, and directed them to procure it of B., using, his name; it was shipped in H. ’s name, and used by the A. ’s, being charged to and a bill sent to them by mistake, but H. made a payment thereon, upon a bill made in his name, and the error in B.’s books was corrected. Held, that a judgment for defendants should be sustained.
    2. Same—Antecedent debt— Ceeditoes and fuechasebs only may baisb OBJECTION.
    The objection that a chattel mortgage was given to secure an antecedent debt cannot be raised by a person claiming title to the mortgaged chattels on the ground that the;? were mortgaged by a third person without title, he being neither a creditor or a purchaser.
    Appeal from a judgment in favor of defendants rendered in.the city court of Yonkers.
    
      William Riley, for app’lt; Ralph E. Prime, Jr., for resp’ts.
   Dykman, J.

—This is an appeal from a judgment of the city court of Yonkers, in favor of the defendants and against the plaintiff

The action was for the recovery of a steam engine, boiler, shafting, pulleys and hangers.

The plaintiff claimed title to the property under a chattel mortgage executed to her by James Allen and David B. Allen, who were copartners in- business in Yonkers under the name of Allen & Son. The plaintiff is the wife of James and the mother of David.

The defendant Heine claimed title to the property by purchase from Marvin Briggs, in New York city, and' it was bought from Briggs, but the great question upon the trial was whether the purchase was- made by Allen & Son, as the plaintiff claims, or whether it was made by Heine, as the defendants claim.

The chattel mortgage to the plaintiff was foreclosed, and she became the purchaser of the property at the sale, and the defendants removed it all from the former place of business of Allen & Son, where it had been- in use previous to the sale, and where it was left after the sale.

There was some claim that the mortgage of the plaintiff was-invalid because it was given to secure an antecedent debt, but the defendant Heine is not in a position to derive any benefit from its invalidity, because he is neither a creditor nor a purchaser. He must, therefore, stand upon his own title as a purchaser from Marvin Briggs.

The facts relating to the purchase are curious and quite complicated. Allen & Son desired to procure an engine, and Heine directed them to Briggs, who had this engine in question, and James went to New York and examined it, but thought it was too small and did not buy it. He reported his fears to Heine, who insisted it would perform the work and was sufficiently large and powerful, and offered to put it in himself and remove it if it proved upon trial to be insufficient That proposition was accepted, and Heine authorized David to use his name in ordering the engine, and it was ordered by David, as we infer from the testimony.

It was shipped to Yonkers in the name of Heine, and he directed the carrier to deliver it to Allen, and it was so delivered. and set up by them, and used for some time and until their failure in business. It was during the time of such use that the plaintiff took her chattel mortgage.

The charge on the books of Briggs for the engine and boiler' was made against Allen k Son, but the bookkeeper says he made the charge against them because Briggs told him the sale was made to them, and that he afterwards wrote the name of Heine: in pencil over their name upon the book.

A bill was sent to Allen k Son at Yonkers for the engine, and-thereupon Heine informed James Allen that the bill was a mistake, and went to Hew York and got a bill in his own name for’ the engine. Heine either then or afterwards paid twenty-five dab lors to Briggs on account of the purchase.

The city judge before whom the cause was tried found all the facts in favor of the defendants and found that the purchase was made by Heine.

Although there is some obscurity about the facts, yet the evidence preponderates in favor of the theory of the defendants to an extent which forbids us to interfere with the findings of tire trial court.

There is some uncertainty in the testimony respecting the ownership of the shafting, hangers and pulleys, but no point was made respecting those articles either upon the trial or upon this appeal, and we assume that all questions relating to those articles Were waived.

The judgment should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concur.  