From Casetext: Smarter Legal Research

Bigel v. Brandtjen Kluge, Inc.

Court of Errors and Appeals
Jan 29, 1942
24 A.2d 179 (N.J. 1942)

Opinion

Submitted October term, 1941.

Decided January 29th, 1942.

1. The chattel mortgage here in question is void as to creditors for failure to set out in the affidavit annexed thereto a true and full statement of the consideration thereof as required by R.S. 46:28-5.

2. Appellant was correctly charged with the receiver's compensation and administration expenses. However, the counsel fee should be reduced to $350.

3. The evidence does not sustain appellant's contention that it was a conditional vendor. Assuming such an agreement at the outset, it was superseded by the chattel mortgage.

On appeal from a final decree in the Court of Chancery advised by Vice-Chancellor Bigelow, whose opinion is reported in 129 N.J. Eq. 537.

Messrs. Lord Lord ( Mr. William A. Lord and Mr. Morris Levine, of counsel), for the appellant.

Mr. Harry Schaffer, for the respondent.


We concur in the view of the learned Vice-Chancellor that the chattel mortgage is void as to creditors for failure to set out in the affidavit annexed thereto a true and full statement of the consideration thereof as required by R.S. 1937, 46:28-5. There was a lack of substantial compliance with this provision of the statute. Honesty is not alone the determinative; completeness of statement is also a prerequisite.

We are also of opinion that the Vice-Chancellor correctly charged appellant with the receiver's compensation and administration expenses; but we think the counsel fee should be reduced to $350.

And there was jurisdiction in equity under the circumstances. Pryor v. Gray, 70 N.J. Eq. 413; affirmed, 72 N.J. Eq. 436.

The evidence does not sustain the contention that appellant "was a conditional vendor of the printing press." But assuming such an agreement at the outset, it was superseded by the chattel mortgage.

Inasmuch as the complainant, Photo-Lith, Inc., has not appealed, we have no occasion to determine the propriety of the dismissal of the bill as to it.

The decree is modified accordingly, and, as so modified, affirmed.

For modification — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15.


Summaries of

Bigel v. Brandtjen Kluge, Inc.

Court of Errors and Appeals
Jan 29, 1942
24 A.2d 179 (N.J. 1942)
Case details for

Bigel v. Brandtjen Kluge, Inc.

Case Details

Full title:JOSEPH BIGEL, receiver of Lippey Printers, Inc., complainant-respondent…

Court:Court of Errors and Appeals

Date published: Jan 29, 1942

Citations

24 A.2d 179 (N.J. 1942)
24 A.2d 179

Citing Cases

Sickinger v. Zimel

An affidavit which affirms the true consideration to be a loan by the mortgagee to the mortgagor greater than…

Sickinger v. Zimel

Kauffman v. Utility Trucking Co., 120 N.J. Eq. 576 ( E. A. 1936); DeYoe v. Harper Brothers, Inc., 121 N.J.…