158 N.Y. 587 | NY | 1899
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *589
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *590
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *591
Although the third mortgage of the plaintiff was not due when this action was commenced, as it became due before judgment, if it was still unpaid, it was properly included with the other two mortgages in the decree of foreclosure, under the allegations of the complaint, the evidence, the position taken by the parties at the trial and the rule governing the subject. (Pond v.Harwood,
The appellants claim that as it is alleged in the complaint that the plaintiff had received $8,889.88 from the insurance, nothing whatever was due when the action was commenced, because that sum exceeded the amount of the first and second mortgages, and the plaintiff had not then sustained any loss on the administrator's bond. The entire allegation of the complaint upon the subject is, that over $2,000 of such insurance was paid on account of the loss on the personal property, and that "by the terms of the policies of insurance covering said chattel property the loss thereon was made payable to *594
the plaintiff as his interest in such chattel property might appear, and the said sum so received by him on account of the damage to such chattel property should be applied as a payment upon the indebtedness or liability secured by said chattel mortgage." We think this suggests the true rule. While the plaintiff received, according to his admission, the sum of $8,889.88 from the insurance, only $6,537.01 was paid on account of the loss on the building, the remainder, $2,352.87, having been paid on account of the destruction of the personal property. The insurance on the chattels was payable to the plaintiff as mortgagee and was necessarily applicable to the particular debt secured by the chattel mortgage, independent of any other debt that the plaintiff had at the time against the mortgagor. The third bond represented the only debt to which the insurance upon the chattels was applicable, and the plaintiff had no right to divert it without the consent of the mortgagor, by applying it to the payment of any debt except that for which the chattel insurance was pledged. (Duncan v. Brennan,
Furthermore, Mrs. Foster was co-surety with her husband upon the administrator's bond, and "a co-surety is entitled to any indemnity, or the avails of it, which his co-surety suing for contribution had from the principal debtor, and if the co-surety has released, or discharged the indemnity, or has collected, and applied the avails to his own use, he cannot recover." (Crisfield v. Murdock,
The appellants further claim that the plaintiff should be charged with $12,887.13, the whole amount of the insurance money, without any deduction on account of the sum paid on Foster's orders to his creditors. Over $6,000 of the entire amount of insurance was paid on account of damages to the furniture and the appellants never had any lien upon this sum, for they never caused a receiver in supplementary proceedings to be appointed. As the building and chattels belonged to Foster, the money paid over by the insurance companies was his money, subject to the lien of the plaintiff thereon as security for the payment of his mortgage indebtedness. It was in the power of the mortgagor and mortgagee, as between themselves, to agree before the insurance money was paid that it should not all be applied on the mortgages. (Coles v. Appleby,
We now reach the question whether he had the right to do this as against the appellants, and this involves an inquiry as to whether the plaintiff had such notice of the appellants' judgments as to charge him with knowledge thereof. They interposed no such defense in their answer, and took no such position upon the trial. The defense of payment, which was alleged, is quite different from the defense that the plaintiff had violated the equitable rights of the appellants after notice *596
of their existence. There is no finding that the plaintiff knew of the appellants' judgments when he released his claim upon a portion of the insurance money and the rule is that a fact cannot be considered by this court for the purpose of reversing a judgment unless it either appears in the findings or, according to the practice formerly prevailing, is requested to be found upon uncontroverted evidence. (Koehler v. Hughes,
We have examined the other exceptions in the record and especially those relating to the admission of evidence, but we find nothing that calls for a reversal of the judgment appealed from, which must, therefore, be affirmed, with costs.
All concur, except O'BRIEN, J., not voting.
Judgment affirmed, with costs.