
    Sarah Fischman, Respondent, v. Samuel Levin, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Conversion — action for — chattel mortgages — default in payment of installments — evidence — rule of damages — bill of particulars.
    Where personal property was sold subject to a chattel mortgage and in an action by the purchaser against the mortgagee for an alleged conversion of the property the proof is sufficient to show either that there was no default under the mortgage or that defendant agreed to modify its provisions in regard to the dates or payment of installments and accepted payment of one installment from plaintiff under said modification, defendant cannot claim that payment of said installment did not secure to plaintiff the right of possession of the mortgaged property, at least until there‘was default in payment of the next installment.
    The testimony of plaintiff that she offered to pay the amount of the mortgage rather than submit to a removal of the property, if defendant would give her time to obtain a check and draw the amount from her bank account, though admissible as a part of the res gesta was not material on the real issue, and permitting plaintiff to prove that she had at the time $2,000 in bank was error.
    The true rule of damages in such an action is the value of the mortgaged property less the unpaid amount due on defendant’s mortgage.
    
      Where plaintiff recovered a judgment for $1,500, the value of more articles than was specified in her bill of particulars, giving it the widest significance, and no deduction was made for the amount concededly unpaid on defendant’s mortgage, the judgment will be reversed and a new trial ordered.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered upon a verdict rendered in favor of the plaintiff, and from an order denying a motion for a new trial.
    Max Schleimer, for appellant.
    Louis A. Jaffer, for respondent.
   Lehman, J.

The plaintiff is the assignee of certain property which was at the time subject to a chattel mortgage in favor of the defendant. The chattels covered by the mortgage were subsequently seized by the defendant and the plaintiff has thereupon brought an action for the alleged conversion of the chattels covered by the mortgage, as well as the conversion of other chattels which plaintiff claims were seized or destroyed at the time that the chattels covered by the mortgage were removed. Upon the trial of the action the plaintiff recovered a judgment for $1,500.

Upon this appeal the defendant claims that the plaintiff has failed to properly allege or prove that the defendant was not acting within his lawful rights when he seized the chattels covered by the mortgage. The plaintiff claims that there was no default in the payment of the instalments due under the mortgage as modified by a subsequent agreement. It must be conceded that the theory upon which the plaintiff claims that the mortgage was prematurely foreclosed is not very clear, but in my opinion the proof is sufficient to show either that there was no default under the original mortgage or that the defendant agreed to modify the provisions in regard to the dates of payment of instalments and accepted payment of one instalment from the plaintiff under the modification of the mortgage.

Regardless then of any question as to whether the agreement to modify the mortgage was based upon a valid consideration, the defendant, after accepting the payment of an instalment from the plaintiff under the modified contract, cannot claim that the payment of that instalment did not secure to the plaintiff the right of possession of the mortgaged chattels at least until there was a default in the payment of the next instalment.

The defendant further urges that the plaintiff wilfully and constantly interjected into the case statements calculated to prejudice the jury, and that the trial justice should have granted a mistrial on this account. It appears from the record that the plaintiff did constantly fight with counsel and made remarks of a prejudicial nature, which the trial justice ordered the jury to disregard, and for which he rebuked the plaintiff. Whether these remarks were sufficient to cause a reversal of the judgment need not now be considered, because in my opinion there are other errors in the record which should preclude us from affirming the judgment.

The plaintiff testified that she offered to pay the amount of the mortgage rather than submit to a removal of the chattels if the defendant would give her time to obtain a check and draw the amount from her bank account. This evidence is admissible only as part of the res gestee, but is not material upon the real issues of the case, because if there was a default in the mortgage, and the mortgagee had a right to the possession of the chattels, he was not bound to extend further time to the plaintiff. The trial justice, however, gave an appearance of real materiality to the testimony by permitting the plaintiff to follow it up with proof that she had $2,000 in her bank account at the time. The introduction of this bank account in my opinion is a serious error.

Still more important, however, is the fact that I think the ¿ward of damages is excessive. The testimony as to the articles converted and the value is very vague, and the qualifications of the alleged experts not very satisfactory. The plaintiff was required to furnish a bill of particulars of the items converted, and damaged, and though the testimony describing the articles seized and removed is so indefinite that it is impossible to point out definitely which articles are not covered by the bill, still it is quite evident that the plaintiff has recovered judgment for the value of more articles than are specified, even though we give the bill its widest significance. Moreover, no deduction was made for the amount of $375, concededly unpaid under the chattel mortgage. The true rule of damages in this action is the value of the chattels less the interest of the defendant in the chattels, i. e., the amount still unpaid upon the mortgage. See Sedg. Dam. (9th ed.), §§ 82, 497e. Also Russell v. Butterfield, 21 Wend. 300.

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Page and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  