On appeal from the Supreme Court.
For the appellant, Kraemer, Siegler & Siegler.
For the respondent, Abraham Welanko.
The opinion of the court was delivered by
HETFIELD, J. The sole question involved in this case, is whether the affidavit to a chattel mortgage is sufficient to answer the statutory requirements. The record presents the following situation: On May 7th, 1928, Robert R. Miller, who operated a drug store at No. 213 Main street, in the city of Passaic, obtained a loan of $10,000 from one Jacob Landau, and on December 12th, 1928, borrowed an additional sum of $5,000 from the same party. In each instance, Miller, for the purpose of securing the payment of this indebtedness,
executed and delivered to Landau a chattel mortgage, covering the merchandise and fixtures contained in said drug store, which mortgages were duly recorded. On November 13th, 1929, Miller gave Landau a third chattel mortgage on the same property, for $12,500. Landau then canceled and surrendered the first two mortgages, upon which there was due the sum of $8,979, and also paid and satisfied another chattel mortgage of $1,000, held by one Sam Jacobs. The balance of $2,521 was paid to Miller by Landau's check dated November 13th, 1929. The last-named mortgage was to be paid in one hundred weekly installments of $125 each. Miller defaulted in said payments; and on February 6th, 1931, the goods and chattels were sold at a foreclosure sale, and were purchased by Landau, the mortgagee, who a week thereafter, sold the merchandise and fixtures to the present appellant, who continued to conduct the drug business at the same location.
On February 21st, 1931, the respondent recovered a judgment against Miller in the New Jersey Supreme Court for $9,796.98. Subsequently, an execution was issued, and the sheriff sold the merchandise, purchased by the appellant, to the respondent. A demand was made on the appellant for possession of the goods and chattels, which was refused, and by reason thereof, the present action of conversion was instituted in the Supreme Court, Essex Circuit.
The respondent based its right to possession of the property entirely upon the grounds that the chattel mortgage was invalid, by reason of the insufficiency of the affidavit, which reads:
"STATE OF NEW JERSEY, COUNTY OF ESSEX
Jacob Landau, being duly sworn, on his oath ...