Abramson v. Patts

Finelite, J. An order to show canse was. heretofore granted by one of the justices of this court, returnable this day, why an order should not he granted herein setting aside the writ of seizure made herein on August 27, 1910, and why an order should not be made directing the plaintiff, his attorney, the sheriff of the county of New York, or his deputy, to relinquish possession of the goods and chattels named in said writ, and why such goods and chattels should not he delivered over into the custody of the defendants, and why the defendants should not have such other and further relief in the premises as to the court may seem just and proper. It appears from the papers submitted upon the motion that the plaintiff’s assignor sold goods, wares and merchandise contained in the premises Ho. 1007 Southern boulevard, borough of the Bronx, in the city of New York, to one Jennie Abramson, defendants’ assignor, for a consideration; that said Jennie Abramson, as collateral security for the payment of the sum of $1,300, made and executed and delivered to the said plaintiff’s assignor a' chattel mortgage covering the property so sold and delivered, which chattel mortgage was duly recorded in the .proper office in the city of New York and was given to secure the payment of twelve promissory notes, one in the sum of $500, due August 17, 1910, with interest, and the remaining payable respectively in the sum of $75 each on the seven [66] teenth'day of each month thereafter until the full amount is paid, with the exception that the last note is in the sum of $50, due July 17, 1911. Said mortgage given to secure said notes provided, upon condition that if the said party of the first part shall and do well and truly pay unto the said party of the second part, her executors, administrators and assigns the sum of $1,300 in installments as aforesaid, then these presents shall he void. And the said party of the first part, for herself, her executors, administrators and assigns, does covenant and agree to and with the said party of the second part, her executors, administrators and assigns that, in case default shall be made in the payment of the- said sum above mentioned, then it shall and may be lawful for, and the'said party of the first part does hereby authorize said party of the second part, her executors, administrators and assigns, with the aid and assistance of any person or persons, to enter her dwelling-house, store and other premises, and such other place or places as the said goods and chattels are or may be placed, and take and carry away the said goods and chattels, and to sell and dispose of the same for the best price she can obtain, and out of the money arising therefrom retain and pay the said sum above mentioned, and all.charges touching the same, rendering the overplus, if any, unto her heirs, executors, administrators and assigns. The defendant contends that, although she has defaulted in the payment of said first note, a writ of seizure could not be issued against said property, for the reason that the conditions of said mortgage or the covenants therein contained do not warrant it. Thus a serious question is presented to me as to whether, .when a mortgage is made in the manner herein described and a default occurs in the payment of one of said notes, the plaintiff under said mortgage can take possession of said property. The plaintiff contends that irrespective of said mortgage failing to contain a clause “that upon the failure to pay any one of said installments mentioned therein the whole amount, upon default in payment of one of said notes, becomes due immediately,” and cites numerous authorities to uphold his contention, but from an examination of one of them I find that he has not fully [67] read the authority quoted as written by the learned judge. Counsel also cites Baumann v. Cornez, 15 Daly, 450—452. Judge Bischoff, in writing the opinion, said: “A stipulation in a chattel mortgage that upon default in the payment of the sum secured, or any installment thereof, or upon the removal of the chattel without the consent of the mortgagee, the mortgage debt remaining unpaid shall at once become due and payable without demand, and if not paid the mortgagee may proceed to take possession, is not unconscionable and contravenes no law or rule of public policy; and upon such default the mortgagee’s right to possession accrues without prior demand for payment of the mortgage debt. * * * and this mortgage also contained a clause that upon default in the payment of the sum secured or of aim/ part thereof or any of the installments thereof, or in case of amy attempt to remove or secrete or to sell or dispose of the mortgaged chattels or any part thereof; * * * also that the mortgagee might, whether any installment was due and unpaid or not, take possession of the chattels at any time and retain the same to his own use and benefit, in which latter ease, however, the mortgagee should return to the mortgagor all moneys then actually paid by the mortgagor on account of the mortgage debt, after first deducting from such moneys a reasonable sum for cartage and for the depreciation of the chattels from use.” The conditions herein above recited giving unto the mortgagee power to remove and take said property were, first, upon default in the payment of the sum secured or of any part thereof, or, second, any of the installments thereof, but the mortgage upon which the motion is predicated contains no such provisions, as the only condition -that can be spelled out wherein said mortgagee can seize said property is contained in the following clause, to wit: “ That in case default shall be made in the payment of the said sum above mentioned, then it shall and may be lawful ” for the said party of the first part, etc., to seize said property, which could not mean anything else except upon the failure to pay the principal, $1,300, secured by said notes. Robinson v. Wilcox, 2 N. Y. Leg. Obs. 160; Halstead v. Swartz, 46 How. Pr. 289. The [68] breach of the mortgagee’s contract does not occur until the last note first becomes due and payable, and the plaintiff cannot, in the absence of a special .provision in said mortgage, be permitted to call the whole amount of the mortgage due upon the ground of an entire breach. A breach of an agreement to pay money in installments is not a breach of an entire contract, and will n.ot permit recovery of all the damages in advance. Wharton & Co. v. Winch, 140 N. Y. 287; Moore v. Taylor, 42 Hun, 45. As provided in said mortgage, until “ default shall be made in the payment of said sum mentioned the mortgagor is to retain and continue in the quiet and peaceful possession of said goods and chattels and the full and free enjoyment of the same.” There is no bréale in the entire condition from the quotation above unto the end. The covenants as to default and peaceable enjoyment follow the former conditions directly and are part and parcel thereof. They must all be read together. So reading them the condition is not broken until default is made in the payment of the entire sum, namely, $1,300, therein “ above mentioned,” when the total becomes absolute. It is upon that default and that alone that the right to seize the property becomes absolute. And it is upon that default, and that alone that the mortgagor loses his right to remain and continue in quiet and peaceful possession. This construction is in harmony with the condition proper and with every one of the sequences which follows. Any other construction would be incongruous and vacillating, and would require the court really to reframe the condition so as to mature the entire debt upon the non-payment of any one of the notes. Earle v. Gorham Mfg. Co., 2 App. Div. 460; 74 N. Y. St. Repr. 333; 37 N. Y. Supp. 1037. For the reasons herein stated the motion to vacate the writ of seizure is granted. Motion granted.