On appeal from the First District Court of Jersey City.
For the appellant, Chazin & Chazin.
For the respondent, Jack G. Goldberg (Saul Mendelson, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a replevin suit. The state of case, settled by the trial judge, who sat without a jury, discloses these facts.
The Sigmey Hat Company, manufacturers of hats, was a tenant in a portion of the factory and loft building owned by the defendant, Manhattan Electric Supply Company, Incorporated, located at 45 Morris street, Jersey City, New Jersey. Prior to February 13th, 1934, the tenant placed certain machinery and other chattels in the leased premises. On the last stated date it executed a chattel mortgage in the sum of $650 on its machinery and other chattels to the Beneforge Capital Corporation. The mortgage being in default, foreclosure proceedings were instituted, sale had thereunder and plaintiff became the purchaser of the machinery and other chattels in question. On Saturday, May 19th, 1934, plaintiff's attempt to remove the chattels was resisted and prevented by defendant, landlord, on the ground that the tenant was indebted to it in the sum of $358 for rent which had accrued subsequent to the date of the chattel mortgage and for which it had on the very same day -- namely -- May 19th, 1934, made a distress. Three days thereafter, on May 22d, 1934, plaintiff instituted this replevin suit, posted bond and removed the chattels to New York. Thus, at the trial, plaintiff claimed the right of possession of the chattels by virtue of having purchased same at the sale under the foreclosure proceedings; the defendant claimed the right of possession to the same goods by virtue of its distress ("Act concerning distresses," 2 Comp. Stat. 1709-1910, p. 1939), and in addition thereto also claimed a cumulative and concurrent lien by virtue of "An act to give a lien to owners of mill, factory, loft and other manufacturing space upon the machinery and other chattels of those to whom office space has been rented, and providing for the enforcement of such lien." Pamph. L. 1933, ch. 237, p. 637. As to the latter claim compare Shoemaker v. Maloney, 102 N.J.L. 363; 132 A. 606; Stinson & Dickinsheets v. Specialty Homes, 107 N.J. Eq. 295; 20 C.J. 9.
There was a nonsuit as to John O'Grady; that is not in issue. In disposing of a motion for judgment made by counsel for the respective parties, the trial judge found, "as a matter of fact that the defendant, the Manhattan Electric
Supply Company, Incorporated, failed to comply with all of the provisions of chapter 237 of the laws of 1933" (N.J. St. Annual 1933, §§ 116-76 to 116-94), and accordingly rendered judgment in favor of the plaintiff. Hence this appeal.
In what respect the defendant failed to comply with the act of 1933, the validity of which is not questioned, is not made to appear in the record. It should perhaps be noted that counsel for appellant assumes and, on that assumption, argues that in all probability the court made that finding because appellant did not conduct a sale of the chattels (section 4 of the act of 1933, supra). Same counsel further argues that appellant was under no obligation to proceed with sale; that the language of the fourth section of the act was merely optional and not obligatory. Compare Farley v. Craig, 15 N.J.L. 191 (at p. 213). We are not, however, privileged to engage in the realm of speculation; we are bound by the unchallenged record.
But, be that as it may, we find it unnecessary to treat of but one of the assigned and argued specification of determinations with which appellant is dissatisfied in point of law. It is this: "* * * the affidavit of consideration [referring to the chattel mortgage in question] is defective because it does not appear therein that it was executed by the holder, its agent or attorney as required by section 4 of ...