Bernheimer v. Prince , 58 N.Y.S. 392 ( 1899 )

Fitzsimons, Ch. J.

The evidence clearly shows that the defendant, prior to the assignment of the chattel mortgage in question, had both actual and constructive knowledge of the fact that, by inadvertence, the chattels replevied herein were included in said mortgage, and that by an agreement made subsequently to the execution and delivery of said mortgage it was agreed in writing between the mortgagor and mortgagee that such was the fact and accordingly that the said chattels should not be included in said mortgage. Such written agreement was duly filed. ■ Thus constructive notice of the facts therein recited was given defendant; actual notice was also given him of said mistakes. Thus' it appears that prior to the assignment to defendant he had full knowledge of the fact that his assignor had no right or title to the replevied goods and that they were not covered by the mortgage. How then can we have an interest in them? The jury in deciding against him were compelled to do so by force of the evidence submitted to .them.

' O’Dwvter and Scotchman, JJ., concur.

Judgment affirmed, with costs.