
    Gilbert H. Avery, Appellant, v. William K. Roland and Others, Respondents.
   Appeal from an order of the Special Term of the Supreme Court, entered in the office of the clerk of the county of Columbia on October 27, 1936, vacating an order of seizure made August 17, 1936, and setting aside the warrant issued pursuant thereto. Plaintiff sold to some of the defendants his retail business, stock of goods and good will, and received therefor an amount of money in cash, and took back and now holds a chattel mortgage given to secure the balance of the purchase price, of $5,000 payable in installments. Plaintiff contends there has been a default, and that there is now due thereon $2,217.24, and interest. The chattel mortgage provided that in case of default, or if the mortgagee deemed the security unsafe, he might take possession of the property and sell it, apply the proceeds to the debt, and recover the deficiency from the mortgagors. Plaintiff took no steps to retake the property under the terms of the mortgage, by replevin, or by other legal proceedings, but instead commenced this action in equity, and prayed for a lien on the property, asked the adjustment of the rights of all the parties, and for a judgment of deficiency, if necessary. The defendants answered denying material allegations of the complaint, and alleging equitable defenses and counterclaims. Plaintiff then procured, without notice, a judge’s order of seizure, directing the sheriff to take the property into his custody. Upon notice, the court vacated this order, and from tins order of vacation the plaintiff now appeals. Instead of resorting to his remedies at law and his right to possession under the mortgage, the plaintiff submitted his cause to the jurisdiction of equity, and sought his equitable remedies. In procuring the order of seizure plaintiff did not show fraud, insolvency of the defendants, or any facts tending to defeat the judgment. In the exercise of discretion the Special Term vacated the ex parte order of seizure. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ.  