
    John Stewart, Appellant, v. The Fidelity Loan Association, Respondent.
    (Supreme Court, Appellate Term,
    December, 1896.)
    1. Trial — Defect in proof cured.
    * If the defect in plaintiff’s proof is afterward supplied by either party during the trial it is cured.
    3. Chattel mortgage — Covers only existing property.
    A chattel mortgage on a fluctuating stock only binds and affects property existing at the time it was made.. -
    3. Replevin — Compensation of marshal — Daws 1883, chapter 410.
    Under section 1711 of the Consolidation Act, in reference to city' marshals, the compensation for trouble and expenses in taking possession of and preserving property replevied is left to the discretion of thé justice.
    
      Adpeal by defendant from judgment of the First District Court.
    Oppenhéim & Leventritt, for appellant,
    H. A.- Sperry, for respondent..
   McAdah, J.

The action was in replevin for the possession of . certain property.

. It appears that Gustav Glazer, on January 8, 1896, executed a mortgage to the plaintiff on six- cording machines, 'one electric motor, tables and shafting for ten machines, contained in prenn ises 374, 376 Canal street, this city, to secure $400. The mortgage was duly filed on January 13, 1896. Lippert & Glazer (the latter being the aforesaid Gustav Glazer), on May 22, 1896, executed to' the defendant, a mortgage on their stock in said premises,, which was duly filed May 23, 1896. This mortgage, under which the defendant claims title, was offered in evidence, but no copy is annexed to the return, so that we are uninformed as to its contents except as they are incidentally referred to during the trial. Thereafter, and on July 6, 1896, Lippert & Glazer executed.a bill of. sale to the plaintiff of all the machinery, stock, etc., contained in their .establishment. This was subject, of course to the defendant’s mortgage,' so far as the property covered by that mortgage is concerned.' The action was commenced August 7, 1896, and was tried September 10th following. The stock being -of a changeable character, it is difficult to determine just what the. defendant’s mortgage covered, particularly as no copy' of the instrument is before us.

The plaintiff proved that there was a default by the mortgagor, and that there -was due to him under the mortgage and bill of sale $140; that the mortgagor surrendered possession of the. property to him, and he took possession; placing a lock on the door. _ He thereupon rested, sand the defendant moved- to dismiss the complaint on the ground that the plaintiff- had made out no cause of action; had shown no possession by the defendant, and had not shown that the property he took under the writ of replevin was that covered by his, mortgage- or bill of sale. The motion was denied, and the' defendant excepted." . The plaintiff was then recalled, and testified that the marshal took the goods replevined from a truck which had left the mortgagor’s premises half an hour before. This was deemed a sufficient identification of the property, and no further objection was made.

If the defendant had rested on his motion to dismiss, the judgment could hardly be sustained, because there was nothing to connect the defendant with any interference with the plaintiff's rights. But the defendant went into its defense and supplied the proofs which the plaintiff ought to have furnished. The rule is that'if the defect in the plaintiff’s proofs is afterwards supplied by either party during the trial, it is cured, for the ease must be finally decided from the entire evidence. Baylies’ Tr. Pr. 224; Tiffany v. St. John, 65 N. Y. 317; Bartholomew v. Lyon, 67 Barb. 86; Leslie v. Ins. Co., 63 N. Y. 31, 32; Painton v. Railroad Co., 83 id. 7; O’Connell v. Samuel, 81 Hun, 357; Berg v. Parsons, 84 id. 60.

The defendant then offered its mortgage in evidence and proved that the property was taken by the defendant Under foreclosure thereof, but insisted that' it had taken only the property covered by its mortgage. The defendant’s mortgage had been copied from a former one, and the evidence is very meagre as to what particular chattels it was intended to or did cover. The plaintiff' was situated differently, for whatever was omitted from' the two mortgages passed to him by the bill of sale.

Glazer, one of the mortgagors, was called by the defendant, and testified that the defendant took the machines specified in the plaintiff’s mortgage as well as the property mentioned in its mortgage; that the defendant took certain stock which was not in the premises when its mortgage was made; and that only $40 or $50 of the stock on hand at the time of the foreclosure was on hand when the defendant’s mortgage was executed.

The stock mortgaged to the defendant, consisting of cotton and silk braid and the like, was used by the mortgagors in their business, and by reason of sales made from day to day was of a fluctuating character, the portions sold being replaced by new goods which were purchased from time to time. Spch a mortgage is often a precarious security, for at law it only binds and affects property existing at the time it was made. Thomas on Chat. Mort.) § 137; Jones on Chat. Mort., § 138; Gardner v. McEwen, 19 N. Y. 123; Smith v. Cooper, 27 Hun, 565; Deeley v. Dwight, 132 N. Y. 59; Rochester D. Co. v. Rasey, 142 id. 570. “.It is a well-settled principle of law, that nothing can be mortgaged which is not in existence, in esse, and which does not belong to the mortgagor at the time of the execution of the mortgage, qui non Jiabet, ille non dot.” Herman’s Ghat. Mort.., § 46. How far such a mort,gage may be considered- good by a court of equity -is-not before us, and need not be -considered. ■ • _ ■

. The justice allowed as taxable costs -the usual- court disbursements, $12 statutory- allowance to -the plaintiff’s attorney, and $12 additional compensation to the marshal who executed the writ of replevin; and we have been specially ‘requestedxin the notice of appeal to review the -allowance of the last item. •

Section 1711 of the Consolidation Act, in reference to city marshals, provides that “All provisions of- law in relation to the , -taking of property by sheriffs of counties shall apply to the taking of property by the said marshals.” Subdivision 2 of- section 3807 of. the Code provides that a sheriff is entitled “ for executing a requisition to replevy one or moré chattels, one dollar; and, also, such additional compensation, for his trouble and expenses in tak- . ing possession of and preserving the property, as * * -' * .

the court or a judge thereof allows.” .The amount seems to have - been left to the -discretion of the justice, to be determined, of course, in a judicial manner; and- as upon the-proofs furnished the discretion was not abused, there is no reason for disturbing the allowance made.' • •

The justice decided that the plaintiff was entitled to the possession of certain of the property claimed by him,- particularly specifying it, and assessed the value at $140, the amount owing to the plaintiff by Glazer, the mortgagor, and Lippert & Glazer, the vendors. The trouble is that the evidence does not establish . the value as high as" that sum. '

Although Glazer testified that on July 8th, when .the bill óf . sale was given, the property ought to have, brought at a sale, according to figures made by him,' between $450 and $500, it does not follow that when the defendant- foreclosed its mortgage the property- then on hand would bring any such sum, for the stock . had in the meantime been, depleted by sales, the exact amount of which does not clearly appear. Besides, this estimate apparently includes -certain machines which were conceded to belong to the ■ defendant. Indeed, the testimony in this respect was so vague . and unsatisfactory that ’ even upon Glazer’s evidence taken 'as a whole the valúe of the property converted could not have been legally assessed at more than $60. . . ■

It follows that the judgment must be reversed and a new trial ordered, with costs to the appellant to- abide the event, -Unless Within ten days the plaintiff, stipulates to reduce the recovery-as "to-the assessed value to $60, in which case the judgment as modified will be affirmed, without costs.

Daly, P. J., and Bisohoff, J., concur.

Judgment reversed and new. trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce recovery as to assessed value to $60, in which event judgment as modified affirmed, without costs.  