Kleinberger v. Brown , 30 N.Y. St. Rep. 246 ( 1890 )

By the Court.—Ingraham, J.

In Champlin v. Johnson, 39 Barb. 606, after a careful review of all the authorities, it was held that on a default in a condition of a chattel mortgage the title to the mortgaged property became absolute, and that the mortgagor had no interest in the property that could be sold on. execution ; that it made no difference, that the mortgagor remained in possession ; that a sale of the mortgaged property under an execution against the mortgagor was a conversion of such mortgaged property.

This case was cited with approval in Judson v. Easton, 58 N.Y. 664.

As the defendant Brown claims only through the mortgagor, and as the mortgagor had no title or interest in the mortgaged property after the 23d of December, 1887, the act of the defendant in taking possession of and selling the mortgaged property after that time was a conversion.

If defendant took possession of the property before December 23d, he was bound to return it to plaintiff on demand, and if he refused he was guilty of conversion. If he took possession after the 23d of December, the taking was a conversion and the defendant was in either event liable.

There was evidence that the sale under the mortgage took place on December 22d. There was also evidence that would justify a finding that it took place some days later and as late as December 31st,

If the defendants desired to have had that question determined by the jury they shouldhave made a request to have it submitted. No such request was made. The defendants moved that the complaint be dismissed, which was properly denied, and the court then instructed the jury to find for the plaintiff.

An exception to this direction does not raise any question for review. In Ormes v. Dauchy, 82 N. Y 448, Miller, J., says : “At the circuit, the judge directed a verdict in favor of the plaintiff, to which the defendants expected.

It is now claimed that the defendants having-relied upon their motion to dismiss the 'complaint and not having requested that any fact be submitted to the jury, it cannot be properly urged that there was any question of fact for the jury.

We think that the defendants should have asked to go to the jury upon the facts, and the exceptions to the rulings and direction of the court is not, under the circumstances, available. Dillon v. Cockcroft, 90 N. Y. 649.”

I do not think that any of the rulings on questions of evidence require that the judgment-should be reversed. I think, therefore, that the judgment should be affirmed, .with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.