
    The Third National Bank of Malone, Resp’t, v. Patrick H. Shields, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1889.)
    
    1. Bills and notes—Accommodation endorsers—Rights of.
    When endorsers of a note are accommodation endorsers, and are known to be such by the creditor, the latter cannot without their consent release any hold which he has actually acquired upon property of the maker-which might be made effectual for payment, and to the extent that the endorsers are damaged by such release they have a defense upon the note; but if the endorsers acquiesce in such release, then defense is gone.
    3. Same.
    When plaintiff had discounted such a note, and had taken from the maker chattel mortgages on certain carriages as security, and the maker subsequently gave another chattel mortgage upon the same or similar property to other persons who were also his creditors, and upon a conflict as to priority of lien the plaintiffs and their creditors each took possession of a part of the property, which was done to the knowledge of, and without protest by, the accommodation endorsers, and thereafter still another party claimed to own all the property in question and brought actions therefor, which were undetermined when this action was brought by plaintiff upon the note against the accommodation endorsers, Held, that defendants here were not entitled to be allowed upon the note the value of the property taken possession of, as aforesaid, by plaintiff, and this because the title to that property was in dispute and still undetermined.
    Appeal from a judgment in favor of the plaintiff, entered in Franklin county upon trial before the special term without a jury.
    
      The action was upon three promissory notes made by Lyman J. Folsom and endorsed for his accommodation by the defendants Shields and Shane and discounted for Folsom by the plaintiff. The plaintiff knew that the defendants were accommodation endorsers. The notes were given at different dates in October, 1886, and the last one fell due February 28, 1887. Default was made in payment of all the notes, of which the endorsers had due notice.
    Folsom died March 1, 1887. In November, 1886, while the plaintiff held the notes, Folsom gave to it a bill of sale or chattel mortgage upon thirty top carriages of Hotchkin’s make, “to hold as collateral security for any and all over-drafts or past due paper that they have or hold.” It was recited in the mortgage that these carriages were stored in “ Mechanics’ Hall ” on the fair .grounds in Malone.
    In December, 1886, Folsom gave plaintiff another chattel ■mortgage on fifty other carriages of the same make, recited in the mortgage as stored in the same hall. This mortgage was recited to be to secure the plaintiff in the sum of $3,500 and interest (the face of the notes) which Folsom owed plaintiff and as security for any paper held by it endorsed by defendants. This mortgage gave the plaintiff a power of sale.
    Folsom, in January following, gave to Adams and Martin a ■chattel moi’tgage upon fifty carriages, recited in the mortgage to be stored in the said Mechanics’ Hall. This mortgage was .given to secure Adams and Martin against their endorsements upon Folsom’s notes for $2,000 then past due and held by the People’s National Bank of Malone.
    It was conceded upon the argument that the plaintiff’s mort.gages had priority of lien over the mortgage of Adams and Martin. Folsom having died March 1, 1887, both the plaintiff .and Adams and Martin on March 2d went to Mechanics’ Hall to secure the carriages covered by their mortgages. Plaintiff had the key of the building at the time of Folsom’s death. There were seventy-nine carriages in the building. Adams and Martin claimed the right to take forty of them under their mortgage .and did take them, the plaintiff interposing no objection. The j)!aintiff took the remainder, thirty-nine. Folsom was a dealer in carriages, and whether the carriages found in the hall after his death were identical with those there when he gave the several mortgages did not appear. The defendants knew that Folsom had given the plaintiff the two mortgages, and Shields, the appellant, was told by plaintiff, the week of the transaction, that Adams & Martin took forty of the carriages out of the hall under their mortgage and that the plaintiff took only thirty-nine. 'Shields made no objection and subsequently made a partial payment upon one note and promised to pay the three in full. Mrs. Hotchkin, the manufacturer of the carriages, soon after Folsom’s death, claimed to own them and brought suits against the plaintiff and .against Adams & Martin to recover the possession of the carriages respectively held by them. These actions are at issue and undetermined. " Because of the action of Mrs. Hotchkin the plaintiff has not sold the carriages. The defendants by their answer claimed credit upon the notes for the full value of the eighty carriages. The court found the carriages to be worth forty-five dollars each, or $3,600 in all, and found against the claim of the defendants and directed judgment for plaintiffs for the full amount of the notes. The defendant Shields alone appeals.
    
      Kellas & Munsill, for app’lt; John I. Gilbert, for resp’t.
   Landon, J.

The action was tried at special term without a jury. The appellant insists that the defendants seasonably demanded a jury trial and refused to waive it. This presents a question of fact respecting which the case settled by the learned trial judge must be deemed conclusive. The case was upon the calendar of the Franklin circuit in March, 1888, and the plaintiff jiressed it for trial; the defendants objected and finally consented that if it might go over it should be tried at the special term to be held in the county in May following, and it was thereupon so ordered, and in pursuance of such order subsequently tried at said special term. The same justice presided at both terms and enforced at the special term the agreement and order made at the circuit. The defendants having asked the favor of a trial at the future special term and their request being granted, were properly held to performance when the term arrived. We think it was a waiver in open court of the trial by jury. We have examined the other questions of practice presented by the appellant, and think their disposition was at the discretion of the court which was properly exercised.

With respect to the merits, the defendants were liable upon their contract of endorsement, and the plaintiff could sue them upon that contract without first exhausting. its remedy upon the carriages which the maker had transferred to it as security. First Nat'l Bank of Buffalo v. Wood, 71 N. Y., 405. If the endorsers, being sureties, desire the benefit of any securities held by the creditor, they must pay up the debt, and thereby become subrogated to the rights of the creditor as to the securities. Id.

But the endorsers, being sureties, and being known to be so by the creditor, the creditor cannot, without the consent of the sureties, release any hold which he has actually acquired upon the property or estate of the maker which might be made effectual for the payment of the debt. Shutts v. Fingar, 100 N. Y., 539-546; Cory v. Leonard, 56 id., 494; Grow v. Garlock, 97 id., 81; Schroeppell v. Shaw, 3 id., 446 ; Smith v. Erwin, 77 id., 466.

To the extent that the endorsers are injured by such release of the securities they have a defense against the plaintiff upon the notes. Same cases; Vose v. Florida R. R. Co., 50 N. Y., 369.

The trial court refused to find that the forty carriages covered by the mortgage to Adams and Martin were the same carriages previously mortgaged to the plaintiff, but the finding made is to the effect that at least twenty of them were. The court refused to find that the carriages taken by Adams and Martin were taken from the possession of the plaintiff, or were in its possession when -Adams and Martin took them.

The court did find that the defendants, during the week of FoljBom’s death, “ were informed about the said chattel mortgages, and as to the possession of the said carriages; that they made no complaint as to what had been done in respect to them, but acquiesced in the same.” This latter refusal to find, and the finding itself, cover questions which were sharply contested upon the trial, and are undoubtedly supported by the evidence. The.appellant, Shields, afterwards made partial payments upon one of the notes and promised to pay all of them.

We think the acquiescence of the defendant is fatal to the portion of the defense resting upon the ground that the plaintiff relinquished its hold upon a portion of the carriages.

Although it is not disputed on this argument that the plaintiff's mortgages were prior in lien to those of Adams and Martin,, it is plain from the attention given to the question upon the trial that it was not certain which lien was prior at the time the carriages were taken. The plaintiff did not withstand Adams and Martin’s pretensions, and Shields, upon being advised of the fact, did not insist that it should. If Shields had objected to plaintiff’s action, plaintiff might have retraced its steps, or at least have attempted to do so.

Mrs. Hotchkin, the manufacturer of the carriages, soon after Folsom’s death, claimed to own them and sued the plaintiff and Adams and Martin to recover possession of such part of them as each party had taken. These actions are at issue and undetermined. Unless Folsom gave to plaintiff a title to the carriages defensible against Mrs. Hotchkin, he gave to it no security. The defendants should have paid the notes at their maturity and taken the securities. If they can, by their default in their obligation, and notwithstanding their acquiescence when told of the taking by Adams and Martin of forty of the carriages, compel the plaintiff and Adams and Martin to try titles with Mrs. Hotchkin and themselves escape costs or risk, and then reap the advantages of success, or, without regard to the title of Folsom, recoup in this-action the full value of the carriages, they will be unconscionably favored.

The defense in this action is an equitable one, and, we think,, under the circumstances, the defendants have no equity to recoup-against the plaintiff for the carriages taken by Adams and Martin. They have shown no actual loss to themselves: it does not yet appear that they would be better off than they now are if plaintiff had taken all the carriages.

It remains to consider whether the defendants are entitled to be allowed the value of the thirty-nine carriages taken possession of by the plaintiff.

The defendants’ position is that since the plaintiff took possession of the carriages under Folsom’s mortgages given to secure these notes, the debt which they were given to secure was thereby presumed to be paid, or paid to the extent of the proved value of the carriages; that the only way the plaintiff could relieve itself from that presumption was to sell the carriages at public auction, and thus ascertain the amount actually paid and the amount remaining unpaid, and that since the plaintiff has not sold the carriages, the presumption of payment remains in full force and thus defeats the right of recovery either in full or pro tanto. The fol lowing cases, among others, are cited in support of this position : Pulver v. Richardson, 3 T. & C.,436: Case v. Boughton, 11 Wend., 107; Stoddard v. Denison, 38 How., 296; Vose v. Florida R. R. Co., 50 N. Y., 369.

The presumption of payment, at least to the proved value of the mortgaged property taken possession of by the mortgagee after default, attaches when the mortgagee refuses to sell the properly. He thus defeats the ascertainment of the exact sum the property could produce, and it is right that he should be charged with its fair value. Here Folsom’s rights against the plaintiff measure the defendants’ rights. The carriages have not been sold by plaintiff because Folsom’s right to mortgage them remains to be determined. It is not plaintiff’s fault that the carriages have not been sold. It is either Folsom’s fault or misfortune that his claim of title is disputed by Hotchlcin, and whether fault or misfortune it postpones the determination of the question whether he gave the plaintiff any security and thereby postpones the question whether plaintiff should credit him with anything upon account of it.

The defendants, by paying the note, can be subrogated to plaintiff’s rights against the carriages, and as between the defendants and the plaintiff they clearly ought to incur the risk of the failure of Folsom’s title.

The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur’.  