FOREMAN v. NORDON CONST. CO. et al.

(Supreme Court, Appellate Division, Second Department. March 26, 1915.)

1. SALES

472-CONDITIONAL BILL OF SALE-FILING.

The filing, as required by Personal Property Law (Consol. Laws, c. 41) § 62, of a conditional bill of sale of heating apparatus installed in buildings sold under mortgage foreclosure, is notice to the purchaser that the articles remain personal property and that title does not pass to him, and he has no claim to the surplus, on paying the unpaid price for the articles, as against a junior mortgagee.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1366-1376; Dec. Dig. 472.1

2. MORTGAGES 151-'FORECLOSURE - PERSONALTY

SALE-FILING.

CONDITIONAL BILL OF

Where a conditional sale contract of articles so annexed to real estate as to become a part thereof was not filed, as required by Personal Property Law, § 62, a purchaser at mortgage foreclosure sale of the realty acquired title to the articles superior to the seller, and the purchaser, paying the unpaid price for the articles, was not entitled to the surplus arising on the sale, as against a junior mortgagee.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dec. Dig. 151.]

Appeal from Special Term, Queens County.

Actions by Stella Foreman against the Nordon Construction Company and another to foreclose mortgages, in which the State Bank appeared and demanded from Edward S. Fowler, referee, the surplus arising on a sale. From a judgment granting relief to the State Bank, Edward S. Fowler, referee, appeals. Affirmed.

See, also, 164 App. Div. 953, 149 N. Y. Supp. 1082.

The following is the opinion of Mr. Justice Jaycox:

These actions were brought to foreclose certain mortgages upon the premises described in the complaint. The moving party herein, the State Bank, holds a subsequent mortgage upon the premises and claims to be entitled to the surplus arising upon the sale. After the sale had been had herein, the referee states that he ascertained that there were on file in the office of the county clerk of the county of Queens two conditional bills of sale covering the heating apparatus installed in the three houses sold pursuant to the judgments in those actions and covering the gas fixtures installed or to be installed in seven houses, including the three houses sold; that the purchaser claimed to be entitled to have allowed to him the amount unpaid for the fixtures and ranges above mentioned in the houses purchased by him; that such claim was allowed, and $140 allowed in one action and $280 in the other. The State Bank now brings this motion to compel the referee to pay over to the city chamberlain the amount which he allowed for such fixtures.

[1, 2] It is entitled to the relief prayed for. If the conditional bill of sale was filed as required by the Personal Property Law (Consolidated Laws, c. 41; Laws of 1909, c. 45, § 62), that was notice to the purchaser, and he obtained no title to the chattels in question. This was the purpose of the act to require the filing of the contract in question, so that purchasers need not depend upon appearances, but could ascertain by examination of the records whether the fixtures were subject to a conditional bill of sale or not. This is assuming that the method of annexation would have made the articles above mentioned a portion of the real estate if the contract of conditional sale had not been filed. If the method of annexation did not make them a portion of the real estate, then the purchaser would not have obtained any title in any event. Central Union Gas Co. v. Browning, 210 N. Y. 10, 103 N. E. 822. As

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the conditional bill of sale had been filed, however, the articles in question remained personal property, and the title did not pass to the purchaser of the premises on the foreclosure of the mortgage. Colwell Lead Co. v. Home Title Ins. Co., 154 App. Div. 83, 138 N. Y. Supp. 738.

I can see no basis upon which the allowance by the referee can be justified in any event. If the articles in question became part of the real estate, then title passed to the purchaser, and his claim was superior to that of the vendor. If they did not become part of the real estate, then the title did not pass to the purchaser under the foreclosure sale, and he had no claim upon them. In either event, he would be entitled to no allowance.

Motion is therefore granted, without costs.

Argued before JENKS, P. J., and BURR, CARR, RICH, and PUTNAM, JJ.

Alfred T. Davison, of Brooklyn, for appellant.

Joseph J. Schwartz, of Brooklyn, for respondent.

PER CURIAM. Order affirmed, without costs, on the opinion of Mr. Justice Jaycox at Special Term.

CHATILLON v. CO-OPERATIVE APARTMENT CO.

(Supreme Court, Special Term, New York County. April, 1915.)

INNKEEPERS 11-Loss OF GUEST'S PROPERTY-LIABILITY.

An innkeeper, which maintained an iron safe to receive money and jewels of guests, requested a guest to change her apartments, and agreed to remove her effects to the new apartment. Through the negligence or dishonesty of its servants, a jewel case belonging to the guest was lost. Held, that the innkeeper was liable, notwithstanding General Business Law (Consol. Laws, c. 20), § 200, declaring that an innkeeper, having provided an iron safe for the receipt of jewels and money, shall not be liable for a guest's loss of those articles retained.

[Ed. Note. For other cases, see Innkeepers, Cent. Dig. §§ 3, 17-40; Dec. Dig. 11.]

Action by Dorothy Palmer Chatillon against the Co-operative Apartment Company. On motion by plaintiff for an order sustaining a demurrer to the first affirmative defense. Motion granted.

J. Frank McDavitt, of New York City (J. Boyce Smith, Jr., of New York City, of counsel), for the motion.

Campbell & Boland, of New York City, opposed.

GIEGERICH, J. The plaintiff has moved for an order sustaining her demurrer to the first separate defense set up in the answer. The action is brought to recover the value of certain jewels contained in a jewel case which was lost while the defendant, a hotel keeper, was moving the goods of the plaintiff from one suite of rooms in the hotel to another suite, which the defendant, for its own purposes and accommodation, requested her to accept and occupy instead of the rooms theretofore occupied by her. The complaint further alleges that the defendant agreed to safely move the plaintiff's belongings from the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 152 N.Y.S.38

one suite of rooms to the other, but that the jewel case and its contents were lost or stolen through the negligence or dishonesty of the defendant and its servants.

The defense demurred to sets up that the defendant provided a safe for keeping money, jewels, and ornaments belonging to guests, and notified its guests thereof by notices posted in the hotel, and that the plaintiff neglected to deliver the jewels in question to the defendant for deposit in such safe. If the plaintiff's cause of action were based upon the common-law liability of an innkeeper as an insurer of the property of guests, quite irrespective of any question of negligence, the protection afforded by section 200 of the General Business Law would doubtless apply and the defense challenged would be good. The plaintiff's action, however, is not based entirely upon the liability of the defendant as an innkeeper, but upon the negligent or dishonest acts of the defendant or its employés. This distinction was pointed out by the court in Hyman v. South Coast Hotel Co., 146 App. Div. 341, 130 N. Y. Supp. 766, where it was held that the hotel keeper was liable for the full value of a guest's jewelry deposited in the safe, but lost through the negligence of the hotel keeper in failing to take proper care of the contents of the safe after removing and carrying such contents away from the hotel because of a fire which occurred there.

On behalf of the defendant it is argued that, as the defendant had no knowledge at the time it made the agreement to safely move the plaintiff's belongings that there was any jewelry among such belongings, the defendant ought not to be held to have waived the statute, since it did not know of the existence of the facts which formed the basis of the alleged waiver (citing Clark v. West, 193 N. Y. 349, 86 N. E. 1; Draper v. Oswego, etc., Ass'n, 190 N. Y. 12, 82 N. E. 755; Newberry v. Furnival, 46 How. Prac. 139, affirmed 56 N. Y. 638). It is by no means clear that there is any question of waiver in the case at all; but, if there were, the cases cited are not in point. There is no question here of the defendant's knowledge of the facts giving rise to the right which it now seeks to set up. The right it relies on is the protection afforded by the statute mentioned to innkeepers, and no claim can be made, of course, of ignorance of that statute. But, in any event, there could be no question of the waiver of that protection, because it was not intended to apply to the state of facts alleged by the plaintiff. That statute protects an innkeeper as an insurer, but has no effect upon his liability for the negligent performance of a special contract with a guest.

The plaintiff's motion for an order sustaining the demurrer is granted, with $10 costs.

PEOPLE v. SEIDENSHNER et al.

(Supreme Court, Special Term, New York County. April, 1914.)

1. CRIMINAL LAW 956-MOTION FOR NEW TRIAL-CONSIDERATION OF SUPPORTING AFFIDAVITS.

Affidavits in support of a motion for new trial must be considered in view of the testimony had in open court.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. 956.]

2. CRIMINAL LAW 945-NEW TRIAL-NEWLY DISCOVERED EVIDENCE-MATERIALITY.

Where there had been testimony on a trial for murder tending to show preparation and combination by defendants for the commission of the crime, such evidence being merely a step in the chain of proof, its contradiction by affidavit was insufficient to warrant a new trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2324–2327, 2336; Dec. Dig. 945.]

3. CRIMINAL LAW

944-NEW TRIAL-NEWLY DISCOVERED EVIDENCEWEIGHT-FAILURE OF WITNESS TO TESTIFY PREVIOUSLY.

The failure of one, testifying by affidavit in support of a motion for new trial after a conviction of murder, to come forward as a witness until the last moment, when he would not be subject to examination or contradiction, justified the court in placing little reliance on his testimony. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2335; Dec. Dig. 944.]

4. CRIMINAL LAW

945-NEW TRIAL-NEWLY DISCOVERED EVIDENCE-IDENTIFICATION BY NEWSPAPER CUTS.

Newly discovered evidence that not one of the defendants was among the four who had committed the murder, when affiant's only knowledge of the appearance of defendants had been gained through newspaper cuts, was wholly insufficient to warrant a new trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig.

5. CRIMINAL LAW LATIVE EVIDENCE.

945.]

941-NEW TRIAL-NEWLY DISCOVERED EVIDENCE-CUMU

On a motion for new trial after a conviction of murder, evidence by affidavit tending to sustain an alibi, standing alone and unsupported by unquestionable proof, is worthless, where the defense of alibi was presented at the trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. ~941.]

6. CRIMINAL LAW 905-MOTION FOR NEW TRIAL.

There was, at common law, no right in criminal cases to move for new trial.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2128, 2133, 2404, 2405; Dec. Dig. 905.]

Jacob Seidenshner and others were convicted of murder, and they move for new trial. Denied.

Wahle & Kringel, of New York City, for the motion.

Charles S. Whitman, Robert C. Taylor, James A. Delehanty, John Minton, Jr., and Frederick J. Groehl, all of New York City, opposed. GOFF, J. Within a few hours, excluding the intervening Sunday, of the sentence of death being executed upon the defendants, they For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

make application for a new trial. This application was, in ordinary observance of the rules, referred to me by the justice of this court before whom it was made. Such reference was made because the law requires that a motion for a new trial must be made before the justice who presided at the trial. Were it possible, in the sense of judicial propriety, for me to avoid hearing the application, I would have done so, to the end that a stranger mind would be employed, and that I would be relieved from a very onerous and heart-searching burden. But the law casts upon me a responsibility and a duty, and no matter how grave the responsibility may be, or how disagreeable the duty, I shall not shift the one, nor fail to discharge the other.

[1] On behalf of the defendants there have been presented 19 affidavits, some of which are original and others copies of originals already filed with his excellency, the Governor. On behalf of the people the district attorney has filed 10 affidavits designed in reply to, in a more or less degree, the affidavits presented in favor of the motion. Of the 19 affidavits mentioned, 15 should be disregarded, as they consist mainly of hearsay, impressions and matters that are irrelevant and immaterial. Of the remaining 4 affidavits, those of Dresner, Burwell, Kalmanson, and Rao will be considered as of any probative value whatever. Consideration of these 4 affidavits must include the oral examination and cross-examination had in open court.

The points of importance dwelt upon by Dresner were: That he was present on the 13th of July, 1912, outside the Garden Restaurant, when he heard Rose say to Vallon and Webber, as Rosenthal emerged from the restaurant:

"There he comes. Go and put it over him!"

That Dresner, understanding what that meant, crossed the street to avoid danger, and that Rose took him for a Burns detective. Rose did not so testify on the trial. What Rose testified to was:

"It began to look too much like business, and I called Louie aside, and 1 said, pointing to a man across the street, 'Do you see that fellow over there?' He said, 'Yes.' I said, 'I am almost positive that is a Burns man that District Attorney Whitman has assigned to watch Rosenthal.' They took the hint and departed and went home. I did not know whether or not the man was a Burns man or a Burns detective. I knew nothing about that at all. I just used that. It began to look like business, and that never was my intention at any time to bring about the murder of Rosenthal."

of

[2, 3] This testimony of Dresner bears the unmistakable stamp of being made to fit Rose's testimony, to show an apparent want of foundation for the presence of a Burns detective. Rose did not say that he was a Burns detective, but he made use of the appearance the man as a pretext to ward off the impending killing of Rosenthal. It is somewhat remarkable that, notwithstanding the apprehension of Dresner that something dire was going to happen, nothing did happen. because of the words alleged to have been uttered by Rose. On the contrary, Rosenthal walked down the avenue with his wife unmolested. The incident thereupon closed. While the testimony of Rose on the trial concerning the incident at the Garden Restaurant was competent to show preparation and combination on the part of the defendants for