
    FRANCIS B. THURBER et a., Resp’ts, v. JOHN STIMMEL, App’lt.
    Mortgage—Foreclosure—Evidence oe part payment.
    Appeal from a, judgment entered upon the decision of the judge at special term.
    
      Edward P. Wilder, for app’lt; E. More, for resp’ts.
   Macomber, J.

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. Lanc 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 $8,500. Upon the sale of the mortgaged property there was realized the sum of- $4,551.88. The plaintiffs hfeld 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 extinguish • ment, 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 that the amount due upon the mortgage was as stated in that complaint, namely, upwards of $6,00l) and other evidence of Swan’s subsequent admissions appear in the case. Yet, upon an examination of the testimony adduced in behalf of the defendant, the same inconclusiveness appears.

The significant circumstances upon which the judgment must stand, if at all, is that notes and money were parted with by Swan and others at or about the time of the assignment of the mortgage to the defendant, and Lane’s, the mortgagee’s claim, was by so much reduced, i o that Lane could not' have enforced the mortgage for a greater sum than $3,500 and the interest. This being the controlling fact in the case, it was necessary in order to continue the mortgage as a security for the indebtedness which Swan owed the defendant, that there should have been a clearly expressed intention on the part of the debtor as well as on the part of the creditor, that it was their joint purpose thus to continue it in force. In the absence of such proof, the payments made reduced the sum actually recoverable by the amount thereof. Champney v. Coope, 32 N. Y , 543; IIubbell v. Blakeslec, 71 id., 70.

Judgment should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.  