
    James W. Montgomery, App'lt, v. Charles Lee, Resp't.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July, 1887.)
    
    1. Trespass — When a sale under a chattel mortgage mat be.
    A chattel mortgage upon three cows was given by this plaintiff to secure the payment of certain moneys to the defendant. Held, That if the mortgage were satisfied by the sale of any less than the whole number, a sale beyond the number sufficient to satisfy the mortgage would be a trespass.
    2. Same—What must be established to show the commission of a
    TRESPASS.
    The mortgage secured beside the payment of the principal and interest all the expenses and charges of the sale. Held, That in order to hold the defendant liable for a trespass, in making a sale of the property, the plaintiff being in default for non-payment of the sum thus secured, it must be shown that the sale was greater than was necessary to realize a sum sufficient to cover all expenses.
    Appeal from a judgment in favor of the defendant entered upon the report of a referee.
    The plaintiff sued the defendant for the alleged conversion of three cows. The defendant answered, alleging that he took them by virtue of a chattel mortgage upon which the plaintiff was in default.
    
      F. R. Gilbert, for app’lt; M. S. Wilcox, for resp’t.
   Landon, J.

The main question litigated upon the trial was whether the amount secured by the chattel mortgage held by the defendant upon the cows taken by him from the plaintiff had been paid, at the time defendant seized the cows. There were open mutual accounts between plaintiff and defendant which the referee was obliged to adjust. He did this by stating the aggregates of the items allowed each party, and from them be found the balance to be in the defendant’s favor.

These items are numerous; the referee was not requested to pass upon them separately, and with the single exception of the item of the proceeds of the butter sold by Van Dyke, the case does not disclose which of the disputed items upon the respective sides the referee allowed or disallowed.

The plaintiff in challenging the results is not able to inform us how the items which he thinks should have been .allowed or disallowed were actually passed upon by the referee. We cannot, therefore, ascertain whether any error was committed in this respect.

We think the referee was right in refusing to charge the defendant with the proceeds of plaintiff’s share of the butter in the hands of Van Dyke. The defendant had not appropriated those proceeds; his claim to obtain and apply them was denied by the plaintiff, and was not in fact effectuated by the defendant.

The balance found due the defendant at the time he seized the cows was $39.36. The costs and expenses of the sale, and of keeping the cows until the sale, were not round. The three cows were sold at public auction, but in what order they were sold does not appear. One was sold for thirty-nine dollars, one for twenty-six dollars, and one for nineteen dollars.

As the plaintiff was in default at the time defendant took the cows, the "taking was lawful. If the sale of two cows satisfied the mortgage debt, with interest and expenses, then defendant’s title was extinguished as to the third cow, and defendant became a trespasser by its sale. Charter v. Stevens, 3 Den., 33; West v. Crary, 47 N. Y., 423; Bragelman v. Daue, 69 id., 69.

The two cheaper cows brought forty-five dollars, or $5.64 more than the actual sum due upon the mortgage. By the terms of the mortgage the defendant, in addition to the mortgage debt, was entitled to sell for enough to pay “all the expenses and charges, ” The case contains no account of these. The plaintiff alleges error. He should make it appear that by the sale of the first two cows the mortgage debt and the expenses and charges were satisfied. It does-not so appear, and we must therefore affirm the judgment-judgment affirmed, with costs.

Learned, P. J., and Bockes, J., concur.  