Follett, J. :
The defendant appeals from the judgment awarding $450 damages for converting the soda fountain, and urges that the judgment should be reversed because the plaintiff in the action did not specifically point out the fountain and assert his title as purchaser from Blackney, and cites in support of his contention Duke v. Welsh (16 J. & S. 516). In that case it does not appear that the goods taken by the sheriff on the execution were in the possession of the *139plaintiff. Moreover, after the goods had been seized, the defendant, and the plaintiff were both present in the store and the defendant spoke of the goods as his, and the plaintiff failed to point out the-articles claimed to be owned by him. The facts in the case at bar-are quite different. The defendant in the execution was not in possession of any of the goods taken by the sheriff, and had not. been for nearly three months, during which, time, as the referee finds, the plaintiff was in possession. Besides the facts referred to in the statement of facts, it appears by the uncontradicted, evidence that the plaintiff after he took possession advertised the* contents of the store for sale. When he advertised the goods, or how they were advertised, does not clearly appear. The evidence: in tins respect, as in many others, is lacking in particularity. Had the defendant in the execution been in possession of the goods at. the time of the levy, so that the sheriff apparently had a right to-seize them, it would have been the duty of the plaintiff to point out the goods which he claimed under the chattel mortgage and those: which he claimed as purchaser. The plaintiff, not having fraudulently intermingled goods, was clearly entitled to recover for those goods which he had purchased of Blackney, and which the defendant in the execution had no interest in nor possession of. (Davis v. Stone, 120 Mass. 228 ; 22 Am. & Eng. Ency. of Law, 536, et seq., and cases cited.) The deputy of the sheriff who executed the execution testified that when the property was sold the plaintiff served a typewritten notice on the witness not to sell. The notice-was not read in evidence, but a statement of its contents is found, at folio 126, by which it appears that the plaintiff asserted that he-owned part of the goods by virtue of a chattel mortgage, and the: remainder absolutely. Having this notice, it was the duty of the sheriff, if he wished to make any distinction in his sale of the two-classes of goods, to ask the plaintiff to point out those which he. claimed under the chattel mortgage, and those which he claimed by original purchase. (Brush v. Batten, 15 N. Y. St. Repr. 548; affd.,. 134 N. Y. 617.)
It follows that the plaintiff having the right to recover for the soda fountain, the defendant has no ground for appeal. In addition to the soda fountain it appears that the defendant took five show cases, show bottles, scales and counters, purchased by the plaintiff *140from Blackney. It is not asserted that these articles were so mingled with the property mortgaged that they were not easily identified, and the plaintiff’s right to recover for these articles is as clear as his right to recover for the soda fountain, and the referee erred in limiting the plaintiff’s recovery to the value of the soda fountain. The defendant was permitted to prove by the sheriff’s deputy that on September 18, 1897, a young man in charge of the store said that it belonged to Mr. Crandall. This was error. This, statement of the clerk was no part of his duty, and what he said was not competent on the question, who owned the property % For these errors the judgment shoidd be reversed, and a new trial granted.
It is neither necessary nor wise to consider the question discussed as to the validity of the mortgage. • The mortgage was valid on its face. The case is barren of evidence showing precisely what was done by the mortgagor and mortgagee in performance of the oral contract under which some of the chattels mortgaged were retailed by Crandall, between the date of the mortgage, January 9, 1897, and June 22, 1897, when the plaintiff took possession. It does not definitely appear what the sales made by Crandall amounted to nor how the avails were applied. It does not appear how much new stock was purchased, how much paid for, and how much left unpaid for. It does appear that some goods were purchased by Crandall of a firm in Buffalo, for which the plaintiff subsequently paid, in whole or in part, but whether other goods were purchased by Crandall does not appear. It does appear that sixty dollars, arising from sales made by Crandall, were misapplied for his own benefit, without the knowledge of the plaintiff. The omitted facts referred to, and very likely other important facts, will be developed on a new trial, and the court will be better enabled to determine, as a question of fact, whether the mortgage, by virtue of the oral agreement between the mortgagor and mortgagee, as carried out by them, rendered the mortgage fraudulent.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Wabd, J., not voting.
Judgment reversed and a new trial ordered, with costs to the plaintiff, appellant, to abide the event.