Opinion
March, 1905.
Robert Stewart, for the appellant.
Ralph Earl Prime, Jr., for the respondent.
The appellant, a judgment creditor of the Hobby Bottling Company, denies the validity of the mortgage in suit, on the ground that it was a mortgage of personal property only, and had not been refiled as required by law. The mortgaged property included a leasehold interest in real estate in Westchester county for a term of ten years. This is a chattel real, covered by the statute concerning the record of conveyances of real estate. ( State Trust Co. v. Casino Co., 19 App. Div. 344.) The term "real property," as used in the Real Property Law, includes chattels real except a lease for a term not exceeding three years. (Real Property Law, § 240.) Having in mind this definition, the mortgage under consideration appears to fall within the purview of section 91 of the Lien Law (Laws of 1897, chap. 418), which took effect on September 1, 1897, the mortgage having been executed on June 25, 1900. That section reads as follows: "Mortgages creating a lien upon real and personal property, executed by a corporation as security for the payment of bonds issued by such corporation, or by any telegraph, telephone or electric light corporation, and recorded as a mortgage of real property in each county where such property is located, or through which the line of such telegraph, telephone or electric light corporation runs, need not be filed or refiled as chattel mortgages." Referring as this enactment does to "mortgages creating a lien upon real and personal property" which shall in each instance be "recorded as a mortgage of real property in each county where such property is located," it would seem tolerably clear that it applies to mortgages covering anything which is defined as real property in the Real Property Law which deals with the whole subject of recording conveyances. In this view, which we think is correct, it was sufficient to record the mortgage in Westchester county, as was done, and it was not necessary to file it or refile it as a chattel mortgage.
The judgment should be affirmed.
HIRSCHBERG, P.J., WOODWARD and MILLER, JJ., concurred; HOOKER, J., not voting.
Judgment affirmed, with costs.