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London Realty Co. v. Riordan

Supreme Court of New York, Appellate Division

February 2, 1912

LONDON REALTY COMPANY, Respondent,
v.
ELIZABETH RIORDAN, Appellant.

Page 855

APPEAL by the defendant, Elizabeth Riordan, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of June, 1911, affirming a judgment of the Municipal Court of the City of New York in favor of the plaintiff, rendered on the 17th day of February, 1911.

COUNSEL

Huber B. Lewis of counsel [Leonard McGee, attorney], for the appellant.

Edward W. S. Johnston of counsel [Morrison & Schiff, attorneys], for the respondent.

CLARKE, J.:

This is an action to foreclose a chattel mortgage on household furniture and effects given to secure a loan of sixty-five dollars. The case was brought in the Ninth District Municipal Court, borough of Manhattan, on oral pleadings, the defendant pleading general denial, usury and payment. Judgment was rendered in favor of the plaintiff for twenty-six dollars and seventy-eight cents, and a 'Special form judgment' was entered which awarded possession of the property to the plaintiff. On appeal the Appellate Term affirmed this judgment.

This was the second transaction between the parties, defendant having formerly borrowed upon the same security fifty dollars which was repaid. The chattel mortgage was expressed to be for sixty-five dollars, which was to be repaid in sixteen weekly payments of four dollars and thirteen cents a week, the first being due on May 5, 1910, and the last on August 18, 1910. In addition to the mortgage she signed the application for the loan. The defendant claimed that this application was the one she put in on the former occasion when she borrowed fifty dollars, and that the sum of sixty-five dollars which now appears in it was written in without her knowledge or consent. She also at plaintiff's request signed the following paper:

'LAW OFFICE OF MORRISON & SCHIFF.

'NEW YORK, April 28th, 1910.

'I hereby retain Messrs. Morrison & Schiff to search the records for encumbrances, and liens against my property, real

Page 856

or personal, situated at 1229 Webster Ave. in the Borough of Manhattan, City of New York, and for judgments against the owners thereof, to draw the necessary papers in connection with the proposed loan to be made to me by the London Realty Company, and also cause to be made an inventory and appraisal of my said property; and for such legal services and disbursements I hereby agree to pay to said Morrison & Schiff the sum of Ten 00/100 dollars at the time of the closing of the loan between the undersigned and the London Realty Company.'

Mr. Blauner, the secretary and manager of the plaintiff, testified: 'She asked for a loan of $65. I asked her if she had the same chattels in 1907. She said she has and some more. I asked her what time we can send down the appraiser. She says any time. I asked her further if she had any other loan since the time she had from us. She said no. I told her we would have to give this over to our attorney to make a search to find out if there is no mortgage against the chattels at that time. She said, of course, there is not, but you can give it over to your attorney. I told her, it will cost you $10 to have that search made and draw up the papers; that is what the lawyers charged. She said she would be perfectly willing to pay that.' He testified that Morrison & Schiff were their regular attorneys and acted for them in all these ...


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