#### The Guaranty Trust Company of New York, as Trustee, etc., Plaintiff, *v.*The Troy Steel Company, Defendant.

(Supreme Court, Albany Special Term,

December, 1900.)

1. Corporation — When a real estate mortgage, given to secure its bonds, need not be refiled as a chattel mortgage —• Preference denied holder of past-due coupons, where property is in hands of receiver.

Where a corporation is in the hands of a receiver appointed in a foreclosure of a mortgage given to secure its bonds, a holder of its past-due coupons can gain no preference over other coupon or bondholders, similarly situated, by levying, under a judgment obtained by Mm upon the coupons, on personalty of the corporation included *485in the said mortgage where it has been duly recorded in all the counties where the real estate included in it is located, as, under chapter 779 of the Laws of ISOS as amended by chapter 529 of the Laws of 1895, such recorded mortgage need not be filed or refiled as a chattel mortgage in order to preserve its lien on the personalty and the rights of the receiver.

S3. Statute — Construction.

■Where one statute amends another “ so as to read as follows ” the effect is to repeal all the provisions omitted from the amended statute.

Motion to vacate and set aside an execution issued upon a judgment, rendered by the Troy City Court, and docketed in Albany county, in favor of one Valentine, and the levy made thereunder.

It appears from the papers herein that on the 1st of January, 1896, The Troy Steel Company executed and delivered to the plaintiff, as trustee, a certain mortgage to secure its bonds of the same date, to the amount of $1,750,000. These bonds bore negotiable interest coupons. This mortgage covered both real and personal property, and was duly recorded in both' Rensselaer and Albany counties, where the real estate of the company is situated, but was not filed as a chattel mortgage. The mortgage provided specifically for the appointment of a receiver in any proceeding that might be taken for the foreclosure thereof.

On the 1st of January, 1898. the Steel Company defaulted in the payment of interest, and thereafter the plaintiff, as trustee, commenced an action to foreclose the mortgage, and such proceedings were therein had that on the 24th of October, 1900, a receiver was duly appointed who on the same day duly qualified and took possession of all of the property of the company, both real and personal.

One Thomas Dickson was the owner of two of these bonds, and after default in the payment of interest sold to one Frank B. Valentine the past-due interest coupons thereon, who thereupon commenced an action in the Troy City Court against the company on said coupons, and on the twenty-fourth of October recovered a judgment for $306.05, which judgment on the twenty-fifth of October was docketed in the counties of Rensselaer and Albany, and an execution issued thereon to the sheriff of Albany county, which, on the twenty-sixth of October, he caused to be levied upon a certain locomotive engine belonging to the Steel Company.

*486It is contended in opposition to this motion, and on behalf of Valentine, that the mortgage as to personal property is void, because not filed as a chattel mortgage.

E. W. Douglas, for motion.

Thomas F. Powers and B. E. DeGroot, opposed.

Fursman, J.

The execution and the levy made thereunder must be set aside for the following reasons, among others:-

Chapter 119 of the Laws of 1868 provides that it “ shall not be necessary to file as a chattel mortgage, any mortgage which has been, or shall hereafter be, executed by any railroad company upon real and personal property, and which has been, or shall be, recorded as a mortgage of real estate in each county in, or through which the railroad runs.”

In 1895 this act was amended by the omission of the words “ by any railroad company.” Laws of 1895, chap. 529. This act declares that “ It shall not be necessary to file or refile as a chattel mortgage any mortgage creating a lien upon real and personal property which has been or shall hereafter be executed *by any corporation,*as security for the payment of bonds * * * where such mortgage is recorded as a mortgage of real estate in each county * * * in which the real estate of said corporation included in said mortgage is located.” In all other respects this amendatory act is, in substance and effect, the same as the act of 1868. It is true that the title of the act of 1895 is entitled “An act to amend chapter seven hundred and seventy-nine of the Laws of eighteen hundred and sixty-eight, entitled ‘An act in reference to mortgages executed by railroad companies ’ ”. There is, however, nothing ambiguous or obscure in the act itself, and it is only where there is such obscurity in the body of an act as to leave it in doubt as to the meaning and intent of the Legislature that resort is had to the title for the purpose of ascertaining and determining such intent. Hadden v. The Collector, 5 Wall. 107.

In the case cited, Field, J., says: “ The title of an act furnishes little aid in the construction of its provisions. * * * It cannot be used to extend or to restrain any positive provisions contained ■ in the body of the act. It is only when the meaning is doubtful that resort may be had to the title, and even then it has little weight. It is seldom the subject of special consideration by the legislature.”' *487The language of the act of 1895 is clear and comprehensive; there is no obscurity whatever about it. The substance of the act is the same as that of 1868, except the omission above referred to. This furnishes a clear indication that it was the intent of the Legislature to extend the operation of the act of 1868, therein limited to railroad corporations, to all corporations. That this is so is made even more manifest by the fact that in 1897 the provisions of the act of 1895 were incorporated into and made a part of the General Lien Law of the State, for by section 91 of article Vm of chapter 418 of the laws of that year it is provided that *41*Mortgages creating a lien upon real and personal property, executed by a corporation as a security for the payment of bonds issued by such corporation * * * and recorded as a mortgage of real property in each county where such property is located * * * need not be filed or refiled as chattel mortgages.” This section manifestly applies to all corporations, and the act of which it is a part expressly repeals both the act of 1868 and that of 1895, and substitutes the foregoing therefor. This re-enactment, in substance, of the act of 1895, whereby the necessity of filing as a chattel mortgage, a mortgage covering both real and personal property given to secure bonds of any corporation, whatever its character, is dispensed with, evidences the construction which the Legislature itself placed upon its own intention in enacting the law of 1895.

Moreover, it is a general rule that where one statute amends another “ so as to read as follows,” it operates to repeal all of the provisions omitted from the amended law.

In Matter of Prime, 136 N. Y. 347, Chief Justice Andrews at page 355, says: “We conceive the general rule to be that when a statute amends a former statute *‘*so as to read as follows ’ it operates as a repeal by implication of inconsistent provisions in the former law, and of provisions omitted in the amended law.” The statute of 1895 amends that of 1868 “ so as to read as follows ”, and, therefore, the rule cited applies.

The mortgage in question was executed, and the bonds thereunder issued subsequent to the act of 1895, and it is clear, therefore, to my mind that there was no legal requirement that this mortgage should be filed as a chattel mortgage. The contention of counsel for Valentine, therefore, in this respect fails.

I have been cited to the case of State Trust Co. v. Casino Co., *4885 App. Div. 381, in which it is said that the Appellate Division in the first department is inclined to the opinion that the statute of 1895 is applicable only to railroad mortgages, but the question was not involved in that case. That was the case of a chattel mortgage pure and simple.

It will be observed that all of the statutes above cited have reference only to mortgages of both real and personal property. The remark of the learned judge who delivered the opinion in that case is clearly *obiter,*and is followed by the expression *“*If, however, this should be so,” and thereupon he proceeds to decide the case wholly upon other grounds.

It will be observed that the judgment recovered by Valentine is upon two coupons, which had been attached to the bonds owned by Dickson, and were purchased by Valentine after they became due. These coupons derive their vitality from the bonds to which they were attached, and the bonds are in all respects subject to the terms and conditions of the mortgage. They and the mortgage are to be read together, and constitute practically one instrument. "Whoever takes a bond takes it subject to the conditions and provisions of the mortgage. Valentine, by suing upon these coupons and recovering a judgment, asserted the validity of the bonds, and necessarily, therefore, the validity of the mortgage, so that he cannot now be heard to dispute its validity. It does not appear that there are any other creditors of the Steel Company than the holders and owners of the bonds and coupons secured by the mortgage in question. There need, therefore, be no apprehension that any portion of the property covered by this mortgage can be seized and appropriated by means of judgments and executions by any creditor who does not sustain to the mortgage a like relation to that of Valentine. Valentine is one of a class. He stands in the same relation to the mortgage as every other coupon-holder and as every other bondholder. He cannot be permitted, by procuring a judgment and execution and levy thereof upon the property of the company, to obtain any advantage over other creditor’s of the same class, the rule of law being that the holder of unpaid coupons detached from mortgage bonds may sue at law and recover a judgment for his unpaid interest, but he cannot, nevertheless, cause the execution to be levied upon the property covered by the mortgage, because that property has been conveyed to the trustee under the mortgage in trust for all the bondholders, and because *489the bondholders under the mortgage stand in reference to that security upon an equal right, and are entitled to equality of distribution. Therefore, one of them cannot be allowed thus to get a preference over the others, and if it becomes necessary for him to reach the property held by the trustee he must proceed against-the trustee, not for his own separate benefit, but as a bondholder or coupon-holder, and on behalf of the bondholders as a class. What may be realized by such proceedings belongs to the whole class and must be distributed among its members *pro rata.*See 5 Thomp. Corp., § 6124.

There are other reasons, unnecessary to' be stated in this brief memorandum, which are also sufficient in my mind to require the granting of this motion.

Motion granted.