Gleason v. Evans , 34 N.Y.S.2d 473 ( 1942 )

These are appeals from two judgments of the Supreme Court entered in the St. Lawrence county clerk’s office on August 27, 1941, and August 20, 1941, respectively, after a trial by the court without a jury, each adjudging that the complaint be dismissed, with costs. These two actions arise out of the same series of transactions. The first action sought the replevin of certain personal property which the defendant Evans had retaken under a chattel mortgage dated October 2, 1939, from plaintiff and her husband to Evans for $3,952.47. The second action sought to have declared usurious a bond and mortgage given by the plaintiff Mary Gleason and her husband Randolph Gleason to Evans on August 4, 1938, to secure payment of $5,500 and interest. In August, 1938, the executors of the estate of Robert S. Welch, deceased, conveyed a farm and personal property thereon to Randolph and Mary Gleason. At the same time the Gleasons gave to the defendant Evans the bond and mortgage above mentioned to secure payment of the sum of $5,500. Evans paid to the Welch estate $5,250. It is his contention that he purchased the Welch farm and personal property for $5,250 and then resold it to the Gleasonl for $5,500 and that the conveyance was made direct from Welch to Gleason t<| save the expense of an additional transfer. The Gleasons contend that they purl chased the Welch farm and borrowed $5,250 from Evans to pay for it and thall the additional $250 contained in the bond and mortgage was a bonus exacted byl Evans. At the same time Evans also received from the Gleasons a chattel mort-l gage on the personal property purchased of the Welch estate, which chattel mort-l gage was given as additional security for the payment of the $5,500. Evans had this chattel mortgage properly filed, hut failed to refile it within a year. Shortly after the expiration of a year a creditor obtained a judgment against Randolph Gleason and levied on some of the personal property described in the $5,500 chattel mortgage. The Gleasons then gave to Evans a new chattel mortgage for $3,952.47, which was the amount of the principal and interest then unpaid on the original debt of $5,500 and which covered personal property then owned by Mrs. Gleason alone. In September, 1940, Evans foreclosed this latter chattel mortgage and these actions resulted. The weight of the evidence sustains the findings of the trial court in favor of Evans. Judgment in each action is affirmed, with costs. Hill, P. J., Bliss, Heffernan, Schenck and Foster, JJ., concur.