1 N.Y.S. 162 | N.Y. Sup. Ct. | 1888
This action is brought to compel the defendant to account for surplus moneys arising upon the foreclosure of a chattel mortgage assigned to him. The defendant is the assignee of the chattel mortgage, which was given by one Swan to Maltby G. Lane, in 1883, to secure the payment of $6,000. The year afterwards, there being about $7,000 then due on the mortgage, and Lane threatening to foreclose, Swan, as is found by the learned trial judge, paid a sufficient sum upon the mortgage so as to reduce the amount due thereon to $3,500. Upon the sale of the mortgaged property there was realized the sum of $4,551.38. The plaintiffs held a mortgage upon the same property which was executed to them the 17th day of June, 1884, to secure $1,515.47, evidenced by a note of that amount payable on demand. The plaintiffs had judgment against the defendant for the difference between $3,500 and the interest thereon, and the amount.realized upon the sale of the chattels, namely, the sum of $923.83, besides costs and disbursements. Much of the evidence is inconsistent and inconclusive. It is attempted to be shown by the witness Swan that the sums which he paid, at or about the time of the assignment of the mortgage to the defendant, were in extinguishment, pro tanto, of the mortgage itself. The learned judge at the trial has derived the conclusion mainly from Swan’s testimony, but not wholly, that such was the • effect of the acts of the parties. Inconsistent therewith, it is shown that, in an action by the defendant against Swan for fraud, Swan substantially admitted
Van Brunt, P. J., and Bartlett, J., concurring.