
    James E. Ostrander, Resp’t v. John Weber, App’lt, and Joseph H. Risley, as Receiver and Sheriff et al., Resp’ ts.
    
    
      Division,
    
    
      Filed April 16, 1889.)
    
    1. Equity—What must be shown to maintain action—Chattel mortgages—When judgment not disturbed—Complaint.
    A complaint setting forth the foreclosure of certain chattel mortgages, the determination of the extent and priority of various and conflicting liens between creditors under chattel mortgages, and a judgment creditor under levy by execution, a multiplicity of actions between such creditors, the advantages of a sale of property suitable, used and adapted to a particular business in lump, and not in separate parcels, to. the end that the greatest sums may be realized for the benefit of all the creditors, will make a case of equitable jurisdiction: and a final judgment entered in an action in consequence of a complaint setting forth these various subjects, confirming a sale and directing the disposition of the proceeds of sale, will not be disturbed.
    5. Same—Claim that remedy exists at law raised by answer.
    In an equity action the defendant in order to insist that an adequate remedy exists at law, must set it up in his answer.
    3. Same—When court has jurisdiction to make final disposition.
    Where a court of equity entertains the action, it will ordinarily retain the case until the whole subject is disposed of.
    4. Same—Orders when final.
    And orders made in such action where they are proper to the action and resting in the sound discretion of the court granting them, are final and will not be reviewed-by the court of appeals.
    5; Same—Objection for omission of party—How raised.
    An objection to the omission of a party from an action must be raised by answer or demurrer, and a defendant who raises the objection for the first time on the trial, will be deemed to have waived all claim on his part to relief in consequence of such omission.
    6. Same—Exception.
    An exception to be available must raise the question specifically.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the special term.
    
      Lawton & Stebbins, for app’lt; Bernard & Fiero, for pl’tff; John F. Cloonan, for Risley and Loughren.
    
      
       Affirming 44 Hun, 631, mem.
      
    
   Potter, J.

—This is an action in equity, brought by the holder of one chattel mortgage covering a portion of the furniture and fixtures used in a hotel known as the Mansion House, in the city of Kingston, executed to one John D. Sleight, by the then owners of said property and proprietors of said hotel, Emma Brigham and Daniel O’Connell, to secure said Sleight on account of his liability as indorser upon certain notes made by said Brigham and O’Connell, and in respect to which notes the makers had made default in payment, and one of which, said plaintiff, as a' second indorser to Sleight had paid before the action was brought. The Sleight mortgage had been assigned to the plaintiff, and was held by him at the time of the commencement of this action. The defendant, Humphrey, also held two chattel mortgages upon distinct portions of the furniture, and the property covered by each of the Humphrey mortgages covered property distinct from the property covered by the Sleight mortgage. The Humphrey mortgages were subsequent in date to the Sleight mortgage, and were executed by said firm of Brigham and O’Connell.

After the execution of these three mortgages, said Brigham and O’Connell sold all said furniture and fixtures in lump to one Oliver H. Brigham, who carried on the hotel business, and used the property covered by said mortgages for that purpose. After such purchase by said Oliver Brigham, he executed a mortgage to the defendant, Weber, upon all of said property, and possibly upon some property besides.

After the execution of the last mentioned mortgage by said Oliver Brigham to Weber, and while said Brigham wa» carrying on the hotel business and using the property covered by said mortgages, for that purpose, the defendant, Loughren, obtained a judgment for 8613.89 against said Oliver H. Brigham, and execution was issued to the defendant, Risley, sheriff of Ulster county, who, by virtue of said execution, levied upon all the property covered by said chattel mortgages, or any of them, and was proceeding, in due course, to sell the same under said levy.

At this time said plaintiff and said Humphrey were threatening ‘to take possession of the portions of the property covered by their respective mortgages. The defendant Weber, was claiming that the lien of his mortgage was prior to the plaintiff’s, by reason of an alleged failure to renew the same by re-filing, as provided by law, and the defendants, Loughren, the judgment creditor, and Risley, the sheriff, were claiming that the lien of the levy was also prior to the lien of plaintiff’s mortgage, for the same reason, and threatened to sell the property, and to distribute the proceeds of the sale accordingly.

In this condition of affairs the action was commenced, the complaint setting forth the situation, the conflicting claims, and, in addition, that the property was adapted and suitable for the business of keeping a hotel, and that if sold it would produce enough to pay the liens upon it, but that if sold separately, and with the conflicting claims and resulting law-suits, it would not produce nearly as much as if sold in bulk and in connection with the hotel business and lease; and that said Oliver Brigham is desirous of disposing of the lease and good will, etc., asking for the appointment of a receiver authorized to sell the same in bulk and to distribute the proceeds under the direction of the court and in accordance with the rights and priorities, as the same should be established by the court in this action. Hone of the defendants served an answer except the defendants Weber and Loughren. • The former admits the giving of the mortgage to him, as stated in the complaint, and that he has no knowledge or information sufficient to form a belief as to the other material allegations in the complaint; and the latter admits the allegations contained in the complaint, alleges that the lien of the levy is prior to the liens of the plaintiff and the Weber mortgages, and that a receiver has been appointed, and that a speedy sale in bulk is most advantageous to all parties.

The situation may be summarized as follows: “That three of the parties had each a chattel mortgage covering distinct portions of the furniture and fixtures of a hotel; that defendant Weber held a fourth, which was a blanket mortgage, covering all the property in the three mortgages, and, perhaps, a little property besides, and the sheriff a levy covering all the property, whether within or without the mortgages, or any of them.

An order appointing a receiver and directing him to sell the property was made upon application to the court. Thereafter the cause was tried by the court, and findings made upon admissions upon the trial substantially as alleged in the complaint, and an interlocutory judgment entered accordingly.

The order appointing the receiver herein, and confirming his report of sale and the interlocutory judgment, were all appealed to the general term by defendant Weber, and were affirmed.

It would appear from the records of this court that an appeal was taken from the former two orders to this court, and the appeals dismissed. Ostrander v. Weber, 101 N. Y., 639.

The property has been sold by the receiver, in pursuance of the orders directing the sale and the interlocutory judgment, and the purchase money paid to the receiver, and possession taken by the purchaser, and a final judgment entered confirming the sale and directing the disposition of the proceeds of the sale.

> We think the judgment appealed from should be affirmed. The complaint sets forth these several subjects of equitable jurisdiction, viz., the foreclosure of chattel mortgages (Briggs v. Oliver, 68 N. Y., 339; Hart v. Ten Eyck, 2 John. Ch., 99; Thompson v. Van Vechten, 5 Duer, 624; 36 Ill., 197-200; Charter v. Stevens, 3 Denio, 33); the determination of the extent and priority of various and conflicting liens between creditors, under chattel mortgages and a judgment creditor under levy by execution. A multiplicity of actions between such creditors (Supervisors v. Deyoe, 77 N. Y., 219; N. Y. and N. H. R. R. Co. v. Schuyler, 17 id., 608); and the advantage of a sale of property suitable, used and adapted to a particular business, in lump, and not in separate parcels, to the end that the greatest sum may be realized for the benefit of all the creditors. Prentice v. Janssen, 79 N. Y., 479-490.

Every one of these subjects has been held sufficient to maintain an action in equity. Their combination in one complaint should not be held to defeat an equity action.

It will be observed that the appellant-defendant, Weber, does not, by demurrer or in his answer raise the question that the allegations in the complaint do not make a case of equitable jurisdiction, or that the plaintiff had a remedy at law. Grandin v. LeRoy, 2 Paige, 509; Wiswall v. Hall, 3 id., 313.

In an equity action, the defendant, in order to insist that an adequate remedy exists at law, must set it up in his answer. Town, etc. v. Cook, 108 N. Y., 504; 13 N. Y. State Rep., 845.

If a court of equity has jurisdiction and entertains the case, it will ordinarily retain the case until the whole subject is disposed of. Taylor v. Taylor, 43 N. Y., 578-584; Ludlow v. Simond, 2 Caine’s Cases, 55.

Hence, if this case in its course, developed any legal aspect, * * * such as the claim that the mortgage held by the appellant Weber covered other property than "that covered by the other mortgages, an order directing the sale of such property might, in this action, have been made, and was so made, at his request, that the same be sold separately, and it was so sold, for one dollar.

There is nothing in the findings nor in the case, to show what separate property there was, or its value, and so this -court cannot determine whether the purchaser made a good or bad bargain, or whether Weber was injured in the slightest degree by the sale. But its sale was within the equitable powers of the court, whether sold separately or in lump, with the other, especially so when it was covered by the execution of the sheriff upon the Loughren judgment and execution, both of whom were parties to the action. All that Weber or any lienor can justly claim is the realization of the utmost amount of money possible from his security, towards paying his debt. He has, therefore, no right to insist upon a use of his security in a manner that will injure other creditors while it does not benefit himself.

The appellant seeks to review upon this appeal the various orders before referred to. The action being of equitable cognizance, and those orders being proper to the action and resting in the discretion of the court granting them, they cannot be reviewed in this court', and are final. Turner v. Crichton, 53 N. Y., 641; Platt v. Platt, 66 id., 360.

Another point was argued upon the appeal. It is that The State of Hew York Hational Bank should have been made a party to the action, and would seem to have been raised for the first time, upon the trial. It should have been raised by answer or demurrer. By such omission, defendant Weber waives all objection on his part to the granting of the relief, except under conditions which do not exist in this case. It nowhere appears that the bank is the assignee of any of the mortgages. It appears in the latter part of the findings that plaintiff’s mortgage was given to secure the mortgagee for the endorsement of certain notes; that one of the notes so endorsed is held by the bank. The plaintiff is the trustee, of the bank in respect to that note, and represents the bank, to all intents and purposes. It could not, in any way affect the rights of W eber, or prevent the determination of the entire controversy, in any respect.

But if these views are not sound and would not lead to an affirmance of the judgment, still, the absence of an exception that the property described in the mortgage executed to John Weber, remaining unsold after sale of the first and second parcels, above described, and in said order and manner, fails to raise the question as to the sale of the property not covered by the Humphrey and the Sleight mortgages. The question is not presented here by any specific exception, and, therefore, cannot be considered. That property evidently had but trifling value, as it produced only one dollar on the sale.

The judgment should be affirmed, without costs.

All concur, except Follett, Ch. J., and Brown, J., dissenting. Parker, J., not sitting.  