
    THOMAS MURTHA, Respondent, v. MICHAEL CURLEY, Impleaded, &c., Appellant.
    
      Conspiracy to defraud judgment creditor, by fraudulent chattel mortgage on debtor's property—remedy for.
    
    An action at law, for damages only, cannot be maintained upon proof that defendant conspired with plaintiff’s judgment debtor to defraud plaintiff of his debt, by taking and foreclosing a fraudulent chattel mortgage upon the debtor’s property, and selling the property covered thereby, before the issue of execution on such judgment. It must appear that plaintiff had, at the time of the alleged wrongful acts, some interest in, or lien upon the property, which could be the subject of damage.
    
      
      It seems, that the proper action, in such case, is in the nature of a creditor’s bill to set aside the mortgage, and that the judgment therein should direct that defendant account for the property mortgaged, or its proceeds.
    Before Sedgwick, Oh. J., and Freedman, J.
    
      Decided February 7, 1881.
    Appeal from judgment, that plaintiff recover from defendants the sum of $753.26, and costs.
    Also appeal from order denying defendant’s motion for new trial on ground of surprise and newly discovered evidence.
    The complaint charged that the defendant Doyle, in 1872, was indebted .to plaintiff, in a sum specified; that while he was so indebted, he conspired with defendant Curley to defraud plaintiff, by removing his property out of the reach of process, which plaintiff might thereafter cause to be issued to collect the indebtedness ; that in pursuance of such conspiracy, the defendant Doyle gave to the defendant Curley certain chattel mortgages, upon his personal property, to secure payment to Curley of more than $5,000; that in fact, Doyle was not indebted to Curley in a greater sum than $500; that on October 10, 1875, the plaintiff recovered judgment against defendant, Doyle, and issued execution thereon; that on or about October 10, 1878, the defendant Curley foreclosed said chattel mortgage, and sold said property; that thereby said plaintiff ‘1 has been deprived of the power of securing or collecting his claim, and that said Curley has, by this scheme of fraud and deceit, maintained control of all the assets of said Doyle, from the year 1872, and has finally seized and sold the same, and converted the proceeds to his own use; and that thereby, plaintiff has been damaged to the extent of his entire claim and interest.”
    On the trial, it appeared that the plaintiff obtained judgment against Doyle by confession. It was not shown that the defendant Curley sold the goods under the chattel mortgage after execution on the judgment was issued. It is to be inferred that the contrary was the case. The plaintiff did not ask for judgment declaring the chattel mortgage void as against him, or that defendant Curley account for the proceeds, nor was the value of the goods at the time of issuing the execution shown. The plaintiff asked for a money judgment, only. The court, after finding that the chattel mortgage was fraudulent and void against the plaintiff, ordered that this money judgment be entered.
    
      Starr O. Hooker, attorney, and George H. Starr, of counsel, for appellant.
    
      Henry B. Hathaway, for respondent.
    
      Adolphus J). Pape, for other creditors of defendant Doyle.
   Per Curiam.

It does not appear that the action were tried as if it were on a creditors bill to set aside the chattel mortgage. If it had been, the appropriate judgment would have been that the defendants account for the property mortgaged, or its proceeds. The appellant would not, in any event, have been liable for any greater sum, than the value of the property, or the proceeds obtained by him. If such were the action, it might in some cases be proper simply to set aside the judgment, and to declare the proper judgment, the action then to be remitted for further proceedings. Such a disposition would not be proper in this case, as the defendant did not offer testimony below, for sufficient reasons, and further evidence might affect the findings, as to the fraudulent character of the mortgage.

But it would appear that the action, was brought as one at law, for damages, a jury trial being waived by the appellant. On that position, the plaintiff had no cause of action at law. At the time that the alleged wrongful act was done, the plaintiff had no lien upon the property mortgaged by execution issued or any interest in the property, which could be the subject of damage (Adler v. Fenton, 24 How. [ U. S.] 408; Moran v. Dawes, Hopk. Ch. 415 [365]; 13 N. Y. 488 ; 32 N. Y. 457). For this reason, the judgment should be reversed, with costs of appeal to appellant, to abide the event of the new trial, which is ordered.

There was also an appeal from an order denying defendant’s motion for a new trial, on the ground of surprise, and of newly discovered evidence. The discretion of the court bn this subject is best exercised by affirming the order, without costs to either party.  