
    Third Department,
    March, 1913.
    Burton H. Sheldon, Respondent, v. Frank McFee and Samuel Borst, Appellants.
    
      Mortgage — chattel mortgage —substitution of security.
    
    Appeal by the defendants from a judgment of the Supreme Court in favor of the plaintiff, entered in Otsego county clerk’s office on the 8th day of July, 1912.
   Per Curiam:

Mrs. White traded the old safe, upon which plaintiff held a mortgage, with the Carey Company for the new safe. In the trade the safes were treated as of equal value. Shortly after she mortgaged the new safe to the plaintiff to secure the same debt for which he held the old mortgage, and plaintiff and White sold it for eighty-nine dollars, the plaintiff receiving the purchase price. Neither the plaintiff nor White was sworn as a witness. The plaintiff knew whether he assented to the trade or ratified it, and his silence makes strongly against him. The new safe was placed in White’s office where the old safe was, and the inference is irresistible that the plaintiff or his agent at the time he took the mortgage knew that it'represented the old safe and thereby ratified the acts of White in making the exchange. Such ratification made the title of the safe company good as to the old safe now in question. The judgment should, therefore, be reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event. The findings that the plaintiff was the owner of the safe and entitled to its possession and that the defendants have converted his property are disapproved of as against the evidence. All concurred, except Lyon, J., dissenting. Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event. The findings -that plaintiff was the owner of the safe and entitled to its possession and that the defendants have converted his property are disapproved of as against the evidence.  