This court has repeatedly held that a mortgagee who holds a mortgage on personal property, payable on demand, may maintain an action for the recovery of the property from any one unlawfully taking away the property without proof of demand of the money due on the mortgage. As between the mortgagor and the mortgagee a demand may be necessary, but as between the mortgagee, and a wrong-doer, such proof may be dispensed with. (See Cassedy v. Hunt, N. Y. C. P. decided June 8, 1844; Delano v. Thurnell, ib. decided February, 1842; 1 Comst. 496; 8 Pick. 333; 3 Sand. S. C. R. 607.
Whether or not the mortgage was fraudulent, was a question of fact for the jury. With their finding we cannot interfere.
If the mortgagor had an interest which might have been levied or held under a judgment against him, still that did not authorize an absolute sale of the property. This has been repeatedly held by the Supreme Court and by this court.
Daly, J., concurred.
Whatever views I might entertain of the necessity of a demand of the debt before the plaintiff could
Judgment affirmed.
Overruled by the Court of Appeals. See note a, ante, p. 123.