
    George Alden, as Receiver, etc., Resp’t, v. Edward K. Clark. et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 4, 1895.)
    
    Pleadings — Amendment. An amendment, which substantially changes the defense set up in the answer, is not permissible.
    Appeal from a judgment in favor of plaintiff.
    
      Edward K. Clark, in pro. per.; Leroy Bennett, for resp’t.
   Merwin, J.

This action is in the nature of a creditors’ bill, brought by the plaintiff, as receiver appointed in proceedings supplementary to execution upon a judgment in favor of Halsey "YY. Noyes, against the defendant John La Grange, recovered January 12, 1891. The object of the action is to set aside, as fraudulent and void as to plaintiff and the debt and judgment he represents, a chattel mortgage given by La Grange to Clark, November 30, 1889, but not filed until January 30, 1891, and no possession taken until January 20, 1891. The relief asked in the complaint is that the mortgage be set aside, and the property covered by it be subjected to the payment of the claims of the judgment creditor, and the costs and expenses incurred, and for such further judgment or relief as may be equitable. The defendant Clark answered, but on demurrer it was held, on appeal to the general term, that his first and second defenses were insufficient in law upon the face thereof. That left, of the answer only an allegation, under the head of a third defense, that the defendant on the 20th January, 1891, took possession of the property covered by the mortgage,- and has since continued in possession. Upon this allegation or so-called defense no particular point was made at the trial, or any request by the defendant to find in regard to it.

The chattel mortgage was given to Clark to secure indorsements, and one item of the property covered was “ interest in Diebold safe.” It appeared that in March, 1888, La Grange purchased this .safe of one Butler for the price of $255, payable in six months, under an agreement that the title should be in Butler until the price was paid. It was alleged in the complaint, and not denied in the answer, that previous to December, 31, 1890, all of the price had been paid except the sum of $102, and that on or about the 31st December, 1890, La Grange paid, or caused to be paid, the sum of $102 in full of the price. It was also alleged in. the complaint, and not denied in the answer, that the plaintiff, before the commencement of the suit, called on Clark with reference to the mortgage, arid that Clark then insisted that the mortgage was valid, and said he claimed the .property, and had nothing to do with the plaintiff. On the trial the plaintiff proved that after the commencement of this action Clark sold and delivered the safe to one Freeman for the sum of $197.50. Mr. Clark then, over the objection of plaintiff that it was not admissible under the pleadings, gave evidence tending to show that on the 31st December, 1890, he purchased of Butler the contract for the safe, paying him therefor either the sum of $102 or $127, and thereafter, on 20th January, 1891, he took possession of it. At the close of the evidence, the defendant Clark asked the court to cotnform the pleadings to the proof, and this the court declined to do, on the ground that it had not the power to do so. It is claimed that this was reversible error.

By section 723 of the Code, power is only given to conform the pleadings to the proof in a case “ where the amendment does not change substantially the claim or defense.'* Apparently, under the •evidence given, Clark claimed that he had, though his purchase from Butler, an absolute title to fhe safe. As his answer stood, it was insufficient as a defense. The amendment sought, if it amounted to anything, would substantially change the defense set up in the pleading, and so would not be admissible. If the amendment was not material, then the defendant has not been hurt. The defendant, on the decision of the demurrer, had been given leave to amend, but had not availed himself of the privilege. We are not persuaded that the court erred in its ruling.

Besides, if all the evidence given be considered, the decision is substantially correct. The most that Clark would be entitled to under the evidence would be to be subrogated to the right of Butler as it was when Clark paid him. That right was to receive the balance of the price. In the decision Clark is allowed the amount he paid Butler and the expenses of removing the safe. For the balance of what he received upon the sale by him a personal judgment is awarded against him. This he cannot complaint of Martha v. Curley, 90 N. Y. 376 ; Campbell P. P. & Manufacturing Co. v. Damon, 48 Hun, 509 ; 16 St. Rep. 133. He refused before suit to recognize the rights of plaintiff, and after suit he sold the property, and he only accounts for what he has received. He claimed an item for office rent, but the court properly refused to allow it. The court correctly held that the safe was not shown to be exempt. There is no doubt that the plaintiff was in a position to attack the mortgage, Mandeville v. Avery, 124 N. Y. 385 ; 36 St. Rep. 338 ; Stephens v. Perrine, 143 N. Y. 476; 62 St. Rep. 843; and that as to him, and the debt and judgment he represented, it was void. Karst v. Gane, 136 N. Y. 316; 49 St. Rep. 740 ; Thompson v. Van Vechten, 27 N. Y. 568, so far as the safe was concerned. Ho other item in the mortgage was in dispute. We find no good reason for reversing the judgment, and it therefore should be affirmed.

All concur. Judgment affirmed, with costs.  