Opinion
March 13, 1939.
In an action brought by a chattel mortgagee to recover damages for the taking of the mortgaged chattels by defendant, the holder of another chattel mortgage given subsequently to that of the plaintiff's, order denying plaintiff's motion to strike out defendant's answer and for summary judgment, affirmed, with ten dollars costs and disbursements. Although the defective refiling of plaintiff's mortgage in 1936 did not render it invalid as to defendant, who took his mortgage with notice of plaintiff's rights, it does not follow that plaintiff is entitled to money damages because defendant took possession of the fixtures. In order to maintain an action for damages, plaintiff must establish that the mortgaged chattels have been placed beyond his reach by the defendant's act. ( Manning v. Monaghan, 23 N.Y. 539; Sani-Porcelain Enamel Products, Inc., v. Bender Store Fixture Co., Inc., 251 App. Div. 726.) There is no proof of such fact in the affidavits submitted. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.