Opinion
October 25, 1954.
In an action by a chattel mortgagee to recover possession of the mortgaged chattel from the purchaser of the chattel upon a Sheriff's sale in pursuance of a levy in execution of a money judgment, which defendant had obtained against the mortgagor, plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Despite the fact that the chattel mortgage may have been invalid as against defendant as a creditor of the mortgagor, by reason of the fact that it was not filed within a reasonable time, there is a triable issue of fact as to whether the Sheriff had sold the chattel subject to the mortgage or free therefrom. If it was sold to defendant subject to the mortgage, she would be estopped from denying its validity. ( Horton v. Davis, 26 N.Y. 495.) Nolan, P.J., Adel, Wenzel, Schmidt and Beldock, JJ., concur. [See post, pp. 980, 1048.]