
    Olive Knight, Ex’rx, Resp’t, v. Lucius P. Warren, impl’d, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    Mortgage—Giver to sureties or rote.
    Defendant executed a mortgage, in terms, to secure payment of a note given by him to plaintiff’s testator on which the mortgagees were sureties. The sureties being released after default and assigned the mortgage to plaintiff. Held, that the mortgage was a security against liability of the sureties in case of default of the principal debtor as well as indemnity in case they were compelled to pay, and was also a fund in their hands pledged for the payment of the debt, and as such was available to the creditor.
    Appeal from a judgment entered on the findings and decision of the court at special term.
    
      G. D. Van Arnaem, for app’lt; A. J. Knight, for resp’t.
   Dwight, P. J.

The action was to foreclose a mortgage of real estate, executed by the defendant, Warren, to one Adams and three others, in terms, to secure the payment of a note given by Warren to the plaintiff’s testator, payable in one year and signed by the four mortgagees, as sureties. Warren paid the interest on the note for several years but the principal was never paid, and more than six years after it became due the sureties, in consideration of their release from liability on the note, assigned the mortgage to the plaintiff as executrix of the payee.

The attempt was made at the trial to show, and some evidence was given, under the plaintiff’s objection, tending to show that the mortgage was given to and accepted by the sureties to indemnify them against loss or damage by reason of their suretyship, and not to secure them against liability on the note. We regard all that class of evidence as incompetent against the plaintiff, as it would have been against the mortgagees themselves, and that the mortgage must be held to have been given, as its terms import, as security for the payment of the note. Being so, it was, necessarily, security against the liability of the sureties in case of default of the principal debtor, as well as indemnity, to them, against loss in case they were compelled to pay the note.

But, being so, it was also a fund in their hands pledged for the payment of the debt, Crosby v. Crafts, 5 Hun, 329; affirmed, 69 N. Y., 607; National Bank v. Bigler, 83 id., 51, and as such was available to the creditor who, if his legal remedy'failed by reason of the insolvency of the principal debtor, which was established in this case, and the discharge by any means of the sureties, might compel its assignment to him, and enforce it for his own benefit. National Bank v. Bigler, supra, 61.

We find nothing in this case to defeat the application to it of the principles mentioned, which are as well sustained by authority as they are well grounded in equity.

Hone of the defendant’s exceptions seem to be well taken. The rulings of the court in the admission of evidence and in the findings on request of the defendant were as favorable to him as he was entitled to ask.

The judgment is right and should be affirmed.

Judgment affirmed, with costs.

Macomber, J., concurs; Corlett, J., not sitting.  