Opinion
June 27, 1963
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal from an order of the County Court of Schoharie County which confirmed the Referee's report in surplus money proceedings had in an action for the foreclosure of a real estate mortgage. The claim against the surplus moneys interposed by the respondents Moskowitz by virtue of their mortgage, which was second and subordinate to the mortgage of plaintiff foreclosed in this action, has been held prior and superior to the claim of appellant under its judgment. Upon a sale by respondents to the defendants Shafer of certain cattle and machinery, the real estate mortgage was given as a "down payment", and to secure the balance of the purchase price a chattel mortgage was executed to respondents and assigned by them to Pioneer Credit Corporation, as was another chattel mortgage executed to them upon a later sale of additional cattle. Appellant contends that subsequently respondents repossessed and sold the cattle and machinery remaining subject to the chattel mortgages for sufficient to satisfy not only the chattel mortgages but to pay, in large part or in full, the real estate mortgage as well. Respondents contend that defendants Shafer sold the chattels back to them in consideration of their agreement to pay to the credit corporation the amounts of the two chattel mortgages and to discharge all the unsecured indebtedness owed by the Shafers to respondents (the unsecured indebtedness being computed in respondents' brief, from exhibits in evidence, as $5,181.55). There was no clear contradiction of the considerable volume of evidence that the transaction was a sale and not a repossession and, indeed, there is no indication that the chattel mortgages were no longer owned by the credit corporation or that respondents had any right to repossess under them. We find no merit in appellant's additional contentions, which do not require discussion. Order unanimously affirmed, without costs.