
    John Stimmel, Respondent, v. Charles A. Swan et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1896.)
    1. Former adjudication — Estoppel.
    A chattel mortgage which was partly paid was assigned to the plaintiff, which the mortgagor agreed he might hold as security for other indebtedness due to bina. Subsequently an action was brought against plaintiff by the mortgagees under a mortgage executed' prior to the assignment, in which it was adjudged that plaintiff’s lien was - limited to the amount due .upon the mortgage at the time of the assignment. Held, that such judgment was not- conclusive as to plaintiff’s rights against the mortgagor, and that the failure to disclose such judgment in an action against the mortgagor for conversion of a portion of the mortgaged chattels did not constitute a fraud.
    8. Undertaking — Arrest.
    The condition of liability of sureties on an undertaking on. arrest ■ire fulfilled by proof of the recovery of judgment against the principal and the issuance of executions against his property and person successively, and his failure to render himself amenable to a mandate to enforce final judgment.
    3. Same — Executions.
    The only requirement with reference to the return of. an execution aa a prerequisite to an action against bail is that it shall not be returned in less than fifteen days.
    
      4'. Same.
    Where an execution against the person has been regularly issued and returned, the fact that a subsequent execution.was prematurely returned is immaterial.
    Appeal from an affirmance by the General Term of the City Court of a judgment in favor of the plaintiff for $2,158.37.
    The action' is upon an undertaking on arrest executed by the defendants Thurber and Yeith as bail for Charles A. Swan in an action brought against him by this plaintiff in the City Court for conversion of property covered by a. chattel mortgage.
    H. Aplington, for appellants.
    William E. Wilder, for respondent.
   Daly, P. J.

In Í883 Charles A. Swan was proprietor of a hotel at 503 Fifth avenue and executed to Maltby G. Lane a chattel mortgage upon the furniture to secure an indebtedness of $7,450, and this mortgage was assigned by Lane to this plaintiff, there being then due upon it to Lane only the sum of $3,500. The plaintiff at that time was also the creditor of Swan in a .sum exceeding $7,000, for which additional indebtedness Swan agreed that he nlight hold the mortgage as security.

. It appeared, however, that prior to the assignment to the plaintiff ■ Swan had executed a second mortgage on the same chattels to the firm of Thurber, Whyland & Co., to secure an indebtedness to them, and when the plaintiff foreclosed his mortgage, realizing from it the sum of $4,551.88, the holders of the second mortgage instituted an action in the Supreme Court to recover from him and have applied upon their mortgage the difference between the sum so realized and the amount due upon the first mortgage to the mort- , gagee Lane at the "time it was assigned to the plaintiff. In that action they were successful and recovered judgment against this plaintiff for $1,123.46, which was affirmed by the General Term and in the Court of Appeals.

Before they commenced their action against this plaintiff he had sued the mortgagor Swan for the alleged conversion of a portion of the property covered by the chattel mortgage, and had procured an order of arrest against Swan,, upon which arrest the undertaking now sued upon "was given, with Thurber and Yeith, these defendants, as sureties. After the giving of that undertaking the action remained in abeyance during the litigation between the plaintiff and Thurber, Whyland & Co-., but on May d, 1893, the plaintiff moved for and obtained a judgment by default against Swan for $2,067.97, and the execution .against his property being , returned unsatisfied, and the sheriff not being able- to find him and to execute the body execution, this action was commenced against the bail. . . .

The .principal defense in this action to a recovery against the defendants upon their undertaking is that the judgment against Swan .was procured by fraud, because the plaintiff did not disclose to the court that it had been adjudged in the suit of Thurber, Whyland & Co. that his- lien under his mortgage did not exceed the sum of $3,500 and had been fully satisfied.

. This defense is easily disposed of. While it was proved that,' as between the plaintiff, as assignee of the first mortgage, and Thurber, Whyland & Co., as second mortgagees, the former could not retain out of the proceeds of the foreclosure of his mortgage a. greater sum than was due thereon to the mortgagee at the time of the assignment, -it is also true that as between the plaintiff and Swan, the mortgágor,, he was entitled to the benefit of the latter’s agreement by which the mortgage became security for the addi-tional sums in which Swan was indebted to him and he could -pursue the latter for conversion of any part of the mortgaged chattels necessary to satisfy his whole lien. The litigation between the second mortgagees and himself did not touch his rights. as against Swan in any particular. He could not tack on to his first mortgage as against them what was virtually a third mortgage claim; it had to be postponed to the. second mortgage, but yet it was perfectly good as against the mortgagor. His right, in his action against Swan and to a judgment were not concluded in any way by the judgment in favor of Thurber, Whyland & Co., for the, subject of the action was not -the same and neither were.the parties; and so there was no fraud or imposition in the prosecution of that action to judgment.

The condition of defendants’ liability as bail was fulfilled by proof of the recovery of the judgment against Swan and issuance of executions against his property and his person successively, and that he never rendered himself amenable to any mandate issued to enforce the,final judgment against him'as provided in the undertaking; and a recovery by the plaintiff was properly allowed.

Su'ch exceptions as are taken to rulings in connection with, the 'oral examination of the witness Wilder, the attorney for the plaintiff, as to his. knowledge at the time hé procured the judgment, or the information which he gave to the court, or his concealments of fact, are' immaterial, as his proceeding to recover the judgment was regular.

Exception was taken to a body execution issued against Swan on June 2, 1893, and returned on August 2, 1893, on the ground that it was not returned until sixty-one days after it was issued. The only requirement with reference to the return of executions as a prerequisite to an action against bail is that it shall not- be returned in less than fifteen days. Code, § 597. A motion to dismiss the complaint was made on the ground that a subsequent execution against the person of Swan was issued .by the plaintiff on his judgment on September 16, 1893, and returned on September 26th in the same year, but the prior execution was subject to no such objection, and was a valid and-proper writ and foundation for this action against the bail.-'.

The motion to dismiss the complaint on that ground was, therefore, properly denied.

27o error being shown, this judgment must be affirmed, with costs. ■ ;

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  