Opinion
06-20-1923
KOERNER v. UNITED STATES WAXED & COATED PAPER CO.
William Harris, of Newark, for petitioner. Gabrielson & Stasse, of East Orange, for receiver.
On complaint of Walter E. Koerner, a receiver was appointed for the United States Waxed & Coated Paper Company. The Mayer Coating Machine Company petitioned for the return of a certain machine, which was opposed by the receiver. Petition granted.
William Harris, of Newark, for petitioner.
Gabrielson & Stasse, of East Orange, for receiver.
FOSTER, V. C. The petitioner seeks the return to it of a certain coating machine, which under contract of May 25, 1922, was delivered to the defendant corporation under a conditional bill of sale, which was not filed or recorded until after a receiver was appointed in this cause. Only part of thepurchase price has been paid and the receiver opposes the return of the machine to the petitioner on the ground that, under the provisions of section 5 of the Uniform Conditional Sales Act (P. D. 1919, p. 461, c. 210), the judgment of the company's insolvency and the appointment of a receiver for it brings the receiver under the protection of the section mentioned, and gives him the levy or lien upon the machine, which this section provides. Section 5 of the act reads:
That "every provision in a conditional sale reserving property in the seller shall be void" against any one who "acquires by attachment or levy, a lien upon," the goods mentioned therein, "before the contract or a copy thereof shall be filed as hereinbefore provided, unless such contract or copy is so filed within ten days after the making of the conditional sale."
I am unable to accept this view of the receiver, and do not think that the provisions of section 5 are broad enough, or are intended, to include the idea of the property being in the possession of a receiver and making that possession synonymous with the statutory expression, "lien by attachment or levy," or to give to such possession the protection and effect of a lien or levy. In the recent case of Commercial Credit Co. v. Vineis (N. J. Sup.) 120 Atl. 417, Mr. Justice Minturn said:
That "this statutory language * * * has a fixed and determinate meaning peculiar to legal procedure, and obviously imports the precedent institution of a legal proceeding in a court of law or equity, as a basis for the existence of the writ and a levy thereunder. * * * A statute therefore containing such well defined legal terms with reference to the determination of legal rights inter partes must be strictly construed, and its plain legal meaning cannot be extended by implication."
This determination disposes of the contention of the receiver, and the application of the petitioner will be granted.