Opinion
January, 1932.
Judgment as against the National Theatre Supply Company, Inc., reversed on the law and the facts, with costs, and judgment directed that the pipe organ is not subject to the lien of the plaintiffs' mortgage and that the conditional sales contract is valid as against the plaintiffs, with costs. The credible evidence requires that a finding be made (as indicated by the trial court) that the pipe organ herein is a chattel having such a determinate character as a movable that it remains personal property. The credible evidence also requires a finding that the pipe organ was not attached to the realty and that its removal may be effected without material injury to the freehold. The manner of filing of the conditional sales agreement was valid under the Personal Property Law as it existed on November 4 and November 12, 1927, at which time such a filing was valid for three years. The mortgage by its terms purported to cover personal property (and as to such was a chattel mortgage), hence advances thereon could not be made in disregard of what might be learned from an examination of the records and indices in the register's office affecting personal property where that property was not of a character that it might become part of the realty. ( Cohen v. 1165 Fulton Ave. Corp., 251 N.Y. 24.) Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made in accordance with this decision. Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ., concur. Settle order on notice.
See Pers. Prop. Law, §§ 67, 71, as added by Laws of 1922, chap. 642, known as the Uniform Conditional Sales Act; Laws of 1926, chap. 160, amdg. said § 71. — [REP.