Opinion
May 7, 1937.
Present — Hagarty, Johnston, Adel and Taylor, JJ.; Lazansky, P.J., not voting. Settle order on notice.
This is a consolidated action wherein appellant seeks to set aside a chattel mortgage made by defendant Bender Store Fixture Co., Inc., to respondent Delbick, and the latter seeks to foreclose the chattel mortgage and secure a personal judgment against appellant and the Bender Company. The Bender Company defaulted. Appellant, a judgment creditor, purchased the chattels at a marshal's sale subject to the Delbick mortgage. The court dismissed appellant's complaint and awarded judgment to Delbick against appellant for $900, the amount of the mortgage, in lieu of foreclosure. Judgment modified by striking out the provision for a money judgment and directing that Delbick have judgment of foreclosure against appellant, and as so modified unanimously affirmed, without costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. While the evidence supports the finding that the mortgage was valid, there is no basis for awarding a money judgment. The chattels, with the exception of two which appellant has loaned to one Simon, are in the actual possession of appellant, and these two are presently available and, therefore, they are not beyond Delbick's reach so as to interfere with or destroy the lien of his mortgage. Under these circumstances it was error to award respondent a money judgment. ( Manning v. Monaghan, 23 N.Y. 539, 548; Norton v. Shields, 174 App. Div. 804.)