
    Maude M. Shelton, Respondent, v. William Holzwasser et al., Appellants.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Chattel mortgage—Mortgagee’s possession under replevin not shown when judgment-roll not in evidence and defective — Section 139 of the Municipal Court Act does not prevent chattel mortgagee from taking possession under mortgage — When demand necessary in conversion.
    In an action for conversion against a chattel mortgagee, alleged to have replevied the property in violation of section 139 of the Municipal Court Act which provides that no action can be maintained in said court on a chattel mortgage except to foreclose the same;
    Held; Where the judgment-roll in the alleged action of replevin returned on appeal was only marked at trial for identification and was not put in evidence and is defective in proof of service of' summons and in that no writ of replevin is attached, etc., the appellate court is bound by the record. There is nothing to show that the property was taken on replevin.
    
      Held, further, that as the chattel mortgage gave to the mortgagee a right to enter, take away and sell the goods, etc., there is nothing in such record to show that defendant’s possession was not rightfully obtained under the mortgage.
    The aforesaid limitation of section 139 of the Municipal Court Act does not preclude a chattel mortgagee from taking possession according to the terms of the mortgage.
    If the taking of goods is lawful it does not become unlawful without a subsequent demand for compliance with the terms of the mortgage, or a demand with tender of amount due.
    Appeal by the defendant Holzwasser, from a judgment rendered in the Municipal Court of the city of New York, second district, borough of Manhattan, in favor of the plaintiff.
    Myron Sulzberger, for appellant.
    Respondent filing no brief.
   Freedman, P. J.

The following extract from the opinion of the court below shows upon what alleged facts and upon what assumed legal basis the judgment was rendered in favor of the plaintiff herein: “ The plaintiff was the owner of certain chattels upon which the defendant Holzwasser held a chattel mortgage. The condition of such mortgage was not complied with and the plaintiff being in default to the extent of $78, the mortgagee sought to enforce his right to possession of the chattels by bringing an action in replevin in the Municipal Court, in derogation of the express provision of section 139 of the Municipal Court Act that no action could be maintained in this court which arises on a chattel mortgage except an action to foreclose the lien. Notwithstanding this provision a writ of replevin was issued and executed by the defendant Young, who is a city marshal, with the assistance of the defendant Williams, who is an employee of the defendant Holzwasser. The chattels were taken from the possession of the plaintiff under the writ, a return made to the court, and the chattels delivered to the defendant Holzwasser. The plaintiff appeared in that action which resulted in a discontinuance by the plaintiff there on payment of costs. The plaintiff brings this action against the defendants alleging that their action constituted a conversion of her property.”

After dismissing the complaint as to the defendants Young and Williams, the opinion continues: “As to the defendant Holzwasser, a different situation is presented. It appears that some time in September, 1903, he got possession of the plaintiff’s chattels and has never restored them to' her. To secure that possession he employed the agency of this court in a way that he was not entitled to make use of but I am not now considering the means by which he got possession but am dealing only with the fact that he did secure the chattels at. the time mentioned. The only justification he can present for having and keeping the plaintiff’s goods is that his chattel mortgage gave him the right of such possession. This is a qualified right, however, and he ■ could take the chattels only for the purpose of satisfying his lien upon them. I think that the long continued possession of the chattels by this defendant after they came into his power-to dispose of in satisfaction of his lien raises the implication that he has converted them to his own use in disregard to any right therein of the plaintiff. I find, therefore, that the chattels have been converted by this defendant, and following his own sworn estimate of their value as made in the affidavit presented in the replevin action, I find their value to be $161.40. If the defendant has sold the chattels he would be entitled to deduct the $78 due him from the proceeds before turning over the surplus to the plaintiff. That amount should be deducted now and judgment given to the plaintiff for the sum of $83.40.”

The return as submitted to this court for determination does not bear out the statement of facts given in the foregoing opinion of the learned justice. There was no judgment-roll or other proceeding in replevin offered in evidence at the trial. What was characterized as a judgment-roll in the case of Holzwasser v. Shelton was produced in court by. plaintiff’s witness and was marked for- identification only. The minutes of the trial do not show that such roll was ever offered, received or marked in evidence. There is attached to the return a summons, with no proof of service thereof, an undertaking in replevin, not properly executed, a complaint and an affidavit setting forth the value of certain property. These are indorsed: Plaintiff’s exhibit for identification.” No writ of replevin is attached, nor does the testimony show that the chattels named in the affidavit aforesaid and sued for here were taken from the possession of plaintiff by virtue of a writ, or that if there was such an action it was “ discontinued by the plaintiff on payment of costs.” Whether the justice was mistaken in his statements or the return is defective we cannot state. This court must determine the appeal upon the record as submitted to us by the parties, so that there is no foundation for the assertion that defendant took possession of the property under a writ of replevin.

The defendant introduced in evidence a chattel mortgage given by the plaintiff to the defendant Holzwasser for the sum of $124.40, covering the chattels in question, which contained a clause which authorized him, upon default in payment of the whole sum, or any part thereof, to enter upon the premises of the plaintiff, etc., and to take and carry away the goods and to sell or dispose of the same at public auction or private sale, etc. Default in the payment of said mortgage was proven. From anything that appears in the record, the seizure of the goods in question was made in accordance with the provisions of the mortgage. That the defendant by section 139 of the Municipal Court Act is limited to an action to foreclose a lien, if he brings any action based upon a chattel mortgage, etc., does not preclude him from taking possession of the chattels under the right to do so given him by the terms of the mortgage. That is all that, so far as the return before us shows, was done by the defendant herein. Whether or not his method of taking possession constituted a trespass need not be considered; it clearly did not constitute a conversion of the goods in question.

If the taking was lawful, the detention is not unlawful, inasmuch as no demand is shown to have been made upon the defendant for a compliance with the terms of the mortgage or a demand for the return of the property, accompanied with tender of the amount due thereon before sale.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event.

Gildersleeve and Mac Lean, JJ., concur.

Judgment reversed and new trial ordered, with costs t» appellant to abide event.  