
    John Stimmel, Respondent, v. Chas. A. Swan et al., Appellants.
    (City Court of New York, General Term,
    April, 1896.)
    Estoppel — Equitable judgment.
    In an action upon an undertaking of bail given in ail action for conversion of mortgaged chattels, the defendants set up a judgment in an equitable action brought by a firm of which one of the sureties was
    a partner against the plaintiff in which it was adjudged that the lien of the latter was prior to that of said firm only to a specified amount and that he had realized such amount by a sale of -the chattels which were found. In the action for conversion the principal admitted that the amount claimed to be secured by the mortgage was due. Held, that such judgment did not operate as an estoppel.
    Appeal by defendants from judgment. .
    "Wm. R. Wilder, for respondent.
    H. Aplington, for appellants.
   Van Wyck, Ch. J.

The record-shows that one Lane held a chattel mortgage for $7,450 upon one Swan’s furniture; that Lane- assigned this, mortgage to Stimmel, the plaintiff herein; for the'recited consideration of $6,450; that Stimmel foreclosed this mortgage by selling all of the chattels mentioned therein which- he. could--find, realizing $4,551 upon such foreclosure .sale; that thereafter Stimmel began in. this court an action in trover against Swan for removing and converting before such sale, to his own use, certain specified chattels covered by the mortgage, and in his complaint in that action he alleged the assignment of the mortgage by Lane to him; that Lane had been paid $1,000 by Swan upon account of amount secured by the mortgage; that there was still due and owing, thereon the sum of $6,450, with interest, from November, 1883; that after giving credit for .$4,551, the amount realized on foreclosure,'there wás still due and owing upon said mortgage and the indebtedness secured thereby the sum of $2,598, and that the value of the chattels covered by the mortgage, and converted by Swan, was' $1,500, for which sum with interest-he demanded judgment. The answer of Swan, defendant in that action, specifically admits the second paragraph of the complaint, which contains the allegation that Swan paid Lane $1,000 on account of the $7,450 secured by the mortgage, and that there was still due and owing, thereon $6,450. In that action defendant Swan was duly arrested and held to bail in the sum of $1,700 and was released upon the giving of an undertaking of bail in that sum' by the -defendants in this action, which is brought upon such undertaking. When that action was called for trial, Swan, defendant therein, defaulted, and an inquest was taken, resulting in a judgment. for plaintiff therein for $2,067, the assessed value of the chattels converted by Swan, and interest thereon. Thereafter1 executions were issued therein.against Swan’s property and returned unsatisfied, then against his body and returned not found, and then this action was commenced against these defendants, who had executed the undertaking of bail of $1,700. The defendants Veitt and Thurber, the sureties, were the only answering defendants, and the main contention by their answer is that- prior to the recovery by Stimmel of the judgment against Swan for the value of the chattels converted, he, Stimmel, had been - fully paid the indebtedness secured by the mortgage assigned to him. However, Swan had specifically admitted in his answer that the alleged balance was due on the mortgage, and if he had been present at the trial of that action, he could not, under his pleading, have disputed the question. The defendants Veitt and Thurber, at the trial of this action, made no,effort to prove their allegations that Stimmel had been fully paid or that his judgment in the action for conversion against Swan was obtained by fraud, except by offering in evidence the roll of a judgment obtained in the Supreme Court in an equity suit, by Wyland and his copartners as plaintiffs against Stimmel as sole defendant, and which defend-' ants herein had plead as a defense, and by offering to show that- the attorney for Stimmel, in his action for conversion against Swan, .had knowledge that such judgment had been obtained in the equity action. The action at bar is by Stimmel against the sureties on the undertaking of bail upon which Swan was released from custody under an order of arrest in ,Stimmel’s action against him for conversion, and the sureties, these defendants, did “ undertake in the sum of $1,700, that defendant Swan, arrested as aforesaid, shall at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action,” and final judgment was obtained and executions issued against the property-and person of Swan and the one returned unsatisfied and the other not found. The sureties made no effort to show that this judgment was obtained by fraud or collusion except by the judgment in the equity action, and the main question here- to determine is, whether this equity action judgment is an estoppel and legal defense against this plaintiff Stimmel, who was the defendant therein. The Supreme Court equity action washy Wyland and his copartners, one of whom was the Thurber-who is one of the defendant’s sureties sued herein, against Stimmel,. who is the plaintiff herein, and it seems that, after Swan had delivered the chattel mortgage to Lane, and before Lane had assigned same to5 Stimmel, that he executed to Wyland and his-partners a second mortgage upon the same chattels to secure-$1,500, and Wyland et als.’ contention was that Stimmel had advanced only $3,500 at the very time of Lane’s assignment to him,, hence that as between them and Stimmel his lien was prior to-theirs only to the extent of this $3,500, and that as he had realized on his foreclosure sale $4,551, equity should decree that their lien attached to the fund after payment of this $3,500 and interest, and the court so decreed, although Stimmel contended that, at the time he advanced the $3,500, and Lane assigned the mortgage to him, Swan was already indebted to him in about $3,000, part of which had been paid to Lane on the mortgage, and that it was-agreed by Swan and himself that he take the assignment of the-mortgage as security for both sums, and the assignment recited* $6,450 as the consideration thereof, and Swan, in his answer in the action for conversion, specifically admits that that sum is owing: on the mortgage in Stimmel’s hands. This equity decree could not operate as an estoppel against Stimmel in his action against Swan for the conversion, nor can it in this action against the-sureties on the undertaking of bail given to secure Swan’s release-from custody under order of arrest in that action. The judgment is affirmed, with costs.

FiTZsmous and McCarthy, JJ., concur.

Judgment affirmed, with costs. __  