
    SALMON et al., Respondents, v. ARENTS, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    June 22, 1906.)
    Appeal from Special Term, Kings County. Action by Hamilton H. Salmon and another against Emeline H. Arents, individually and as administratrix of the estate of Charles R. Arents, deceased. From a judgment in favor of plaintiffs, defendant appeals.
    Affirmed.
    John P. Elder, for appellant.
    Charles J. McDermott, for respondents.
   PER CURIAM.

Affirmed, with costs.

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 the deceased and filed in the proper office on the 12th day of July, 1901. A renewal statement was also filed in the proper office on or about the 10th day of July, 1902. The mortgagor died on the 2d day of August, 1902, and there is no proof or finding that a renewal statement or a copy of the chattel mortgage was filed within 30 days before the expiration of 12 months after the last renewal. The provisions of the lien law (chapter 418, of p. 514, of the Laws of 1897) in relation to the filing of chattel mortgages are a substantial re-enactment of section 1, ch. 279, of p. 402, of the Laws of 1833. 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 the estate of her deceased husband, as well as the next of kin, and, while there is no intimation in the evidence or in the findings that there are creditors aside from the plaintiffs, such is the presumption. We recently held, in Huyler v. Dolson, 101 App. Div. 83, 91 N. Y. Supp. 794, that until rebutted the presumption exists that there are creditors for whom an executor holds the pérsonalty 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 control 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. Karst v. Gane, 136 N. Y. 316, 32 N. E. 1073. The Court of Appeals has recently, on that subject, said: “It is argued on behalf of the plaintiff that at the time the defendants took possession of the property under their chattel mortgage they were simple contract creditors and in no position to attack the plaintiff’s mortgage or possession. This court has held that a simple contract creditor is as much within the protection of the statute as a creditor whose debt has been merged in a judgment.” Russell v. St. Mart, 180 N. Y. 355, 359, 73 N. E. 31. 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 nonfiling 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 creditors or others interested in the estate “disaffirm, treat as void, and resist all acts done, transfers, and agreements made ih fraud of Such persons’ rights.” Red-field’s Law and Practice in Surrogate’s Court (5th Ed.) p. 411. For these reasons the judgment must be reversed, and new trial granted.

JENKS, J., concurs.  