
    HALL v. DITSON.
    
      N. Y. Supreme Court, First Department;
    
    
      Special Term, March, 1878.
    Usury. — Chattel Mortgage.
    The rule that equity will not allow a mortgagee to clog the equity of redemption with any bye agreement, — stated.
    The simultaneousness of two agreements between the same parties is not alone enough to bring a case within the rule.
    The owner of musical compositions and the plates for printing them mortgaged the plates and assigned the copyrights to a creditor to secure the debt and new advances and interest, and with an agreement that the creditors should do all the mortgagor’s printing and receive one-half the profits of all the music they should print, over and above the cost of printing and materials.
    
      Held, that the contract, being freely made, was neither unconscionable nor usurious.
    It would, not necessarily be usurious even if made as a condition of the loan.
    What is evidence of fairness or unfairness in the conduct of an auction sale of plates and copyrights, in which many persons are interested.
    An auction sale of chattels, duly made by virtue of a mortgage, extinguishes the equity of redemption, although they are bought in by the mortgagee.
    If the mortgage has become absolute by lapse of time and default, the mortgagor must make a tender before commencing an action to redeem. An oiler in pleading is not enough.
    Where the court did not sustain any part of the plaintiff’s demand for relief, they refused to pass on any questions arising between co-defendants.
    Action for an acconnting and other relief. Trial by the court.
    This action was brought by Thomas J. Hall, as surviving partner of William Hall, deceased, against Oliver Ditson, John C. Haynes and Charles H. Ditson, composing the firm of Oliver Ditson & Co., the executors of William Hall, and others, to obtain a resale of mortgaged personal property of the firm of William Hall & Son, on the ground that the same had been fraudulently sold by the defendants, Ditson & Co., also for an accounting and other relief.
    The material facts out of which the action arose are as follows : Prior to May 5, 1862, William Hall and James P. Hall composed the firm of William Hall & Son, and carried on the business of publishers of, and dealers in, musical compositions. On that date said firm was dissolved, and William Hall was.made liquidating partner, and carried on the business alone until February 1, 1866, when he received Thomas J. Hall as a partner, and a new firm of William Hall & Son was formed. Each of the aforesaid firms became the owner of great numbers of copyrights for musical compositions.
    About December 19, 1871, the said firm of William Hall & Son gave their bond for $10,000 to one William A. Pond for money loaned by him, and also, to secure the same, a chattel mortgage on the plates and copyrights of certain musical compositions, which copyrights were also at the same time duly assigned to said Pond. Near the time that this mortgage was made, but subsequent thereto, William Hall & Son made an agreement with said Pond to print their musical compositions and share the profits.
    On December, 1872, the aforesaid firm made another mortgage for $7,678.78 on the same chattels, to Edward A. Morrison, payable on demand.
    On January 10, 1874, the same firm made still another mortgage on the same property for $7,048.39 to O. Ditson & Co., which said sum was composed of cash advances to the former by the latter, and a balance of account for merchandise. On the same day, William A. Pond, who had been pressing William Hall & Son for payment of his mortgage, assigned it to said O. Ditson & Co., who paid the full amount and value thereof. At the same time said Pond assigned to O. Ditson & Co., all his right, title and interest in the said copyrights assigned to him as above stated.
    Upon the same day as the execution of the mortgage to Ditson & Co., but after said bond and mortgage had been executed and delivered, and the Pond mortgage assigned, and all the money and consideration for both bonds and mortgages paid, and after Ditson & Co. had given the said firm the option to enter into it or not, as they might choose, the latter made an agreement with the former to do their printing, similar to the one they had formerly made with Pond.
    After this agreement had been executed and delivered, Ditson & Co. unconditionally offered to surrender and give it up, but Hall & Son voluntarily refused the offer, and requested that the agreement should stand, and its provisions be carried out.
    ■William Hall, the senior member of the firm, died in May, 1874, and the plaintiff, Thomas J. Hall, carried on the business as surviving partner.
    In February, 1873, the aforesaid Edward A. Morrison assigned his said bond and mortgage to O. Ditson & Co., who paid therefor the amount then due thereon.
    On or about December, 1876, and shortly before the aforesaid bonds and mortgages, the payment of which had been extended from time to time, became due, Ditson & Co., and the plaintiff, as surviving partner of William Hall & Son, settled and adjusted all the claims, accounts and demands existing between them, and found and agreed upon the sum of $22,474 as due from the plaintiff, and adjusted it by the plaintiff agreeing for himself, and as survivor of William Hall & Son, to pay, and Ditson & Co. agreed to accésit in full satisfaction of such balance due, the sum of $21,000 before January 8, 1877, and satisfy their liens and claims.
    After the said bonds and mortgages became due,, said plaintiff not having paid the $21,000, according to agreement, and the said mortgages not having been paid, O. Ditson & Go. took possession of the property and advertised and sold the same at public auction in the city of New York, the plaintiff, as surviving partner of William Hall & Son, having agreed in writing to such sale in case he should fail to pay the $21,000 as aforesaid. The sale was found to have been honestly and fairly made by Ditson & Co., who bought the property for $10,000.
    At the sale Thomas J. Hall put forward a claim of his wife to a portion of the property : the defendant, James F. Hall, interposed a claim of one-half interest in a large but undefined share of the copyrights : one of the executors objected to the sale, stating that it was illegal because he had not received notice thereof, &c. : and the attorney of Thomas J. Hall, not only representing the latter, but also the alleged owner of a previous mortgage of $6,000 and interest since 1870, stated that that mortgage covered the property, and it would be enforced against any one who should purchase the property.
    There was no tender of payment made before bringing this suit, but in the complaint the plaintiff offered to pay the expenses of a resale and the amount found due upon the said mortgages upon an accounting.
    Other material facts sufficiently appear in the . opinion.
    
      Algernon S. Sullivan and Robert L. Fowler (Sullivan, Kobbé & Fowler, attorneys), for plaintiff.
    This action is properly brought for an account (Pratt v. Stiles, 17 How. Pr. 222; Parker v. Alcock, Younge, 369; Bloxham v. Pell, cited 2 Wm. Blacks. 999). This is an action to redeem (Fisher on Law of Mort. 73; Cholmley v. Countess of Oxford, 2 Atk. 267; Palk v. Clinton, 12 Ves. 63; Hasbrouck v. Vandervoort, 4 Sandf. 78; Kemp v. Westbrook, 1 Ves. Sr. 278; 2 Story Eq. 1032). All the defendants are necessary parties (Coote on Mort. 537; Osbourn v. Fallows, 1 Russ. & Mylne, 741; Henly v. Stone, 3 Beav. Ch. 355; Cholmondeley v. Clinton, 4 Bligh, 1; Code of Pro. §§ 118, 274; Code of Civ. Pro. §§ 447, 1204). A chattel mortgage is not a bill of sale on condition, but a mere collateral security (Hall v. Sampson, 35 N. Y. 274; Charter v. Stevens, 3 Den. 33; Pulver v. Richardson, 3 Sup'm Ct. 436); and a mortgagee of chattels is bound to sell in order to foreclose the equity of redemption (Patchin v. Pierce, 12 Wend. 63; Pratt v. Stiles, 17 How. Pr. 221). The old doctrine of forfeiture after the law day no longer exists (People, use of Farrington, v. Bristol, 3 Law and Eq. Rep. No. 7, p. 196; Hulsen v. Walter, 34 How. Pr. 388). Where a chattel mortgagee is a purchaser of mortgaged chattels, he remains a trustee, and the equity of redemption is not cut off (Pulver v. Richardson, supra); and the mortgagor is entitled to a resale and for a decree that he may redeem (Story Eq. Jur. 1062; 2 Mass. Cir. Ct. 244, 251). The mortgagee shoiüd not take possession of property and greatly enhance its value before sale (Mickles v. Dillaye, 17 N. Y. 84). Ditson & Co., having a share of profits, are partners as to outside creditors (Coll, on Partn. 43; Exp. Hamper, 17 Ves. 42). The court will not allow the mortgagee to clog the equity of redemption with any bye agreement (Jennings v. Ward, 2 Vern. 520), nor to enter into any oppressive agreement at time of execution of loan (Price v. Perrie, 2 Free. 258; Willett v. Winnell, 1 Vern. 488; Bowen v. Edwards, 1 Ch. 222; Thornhill v. Evans, 2 Atk. 330). The mortgaged property must be disposed of at a fair sale (Case v. Boughton, 11 Wend. 106). The surviving partner has exclusive control of the partnership property only for such purposes as closing up the business, and matters in course of liquidation (Evans v. Evans, 9 Paige Ch. 180; Matheson v. Field, 3 Robt. 47; Loeschigk v. Addison, 4 Abb. Pr. N. S. 214); and it is not true that in all cases a survivor alone has power to avoid partnership contracts ; the test being, was it partnership property at the death of the deceased partner? (Daby v. Ericsson, 45 N. Y. 786; Story on Part. 346). It is too late for objection to the trial on the issues (Fonda v. Sage, 46 Barb. 109). An account rendered is not conclusive on the parties (Stenton v. Jerome, 54 N. Y. 480; Champion v. Joslyn, 44 Id. 653; Manhattan Co. v. Lydig, 4 Johns. 377; Hutchinson v. Market Bank of Troy, 48 Barb. 302; Kock v. Bonitz, 4 Daly, 117). This case is precisely analogous to a partition (Bogardus v. Parker, 7 How. Pr. 305; Daniel's Ch. Pr. 190). The executors are necessary parties (Williamson v. Field, 2 Sandf. Ch. 533).
    
      Erastus Cook (Estes & Barnard, attorneys), for defendant, Ditson & Co.
    
      Charles W. Sanford, for executors of William Hall.
    
      Edward Patterson, for James F. Hall.
   Van Vorst, J.

The plaintiff claims that the printing contract, bearing even date with the chattel mortgage executed by Hall & Son to the defendants, Ditson & Co., was a hard and unconscionable agreement and a clog upon the mortgage. He does not, however,urge that the transaction was usurious.

The executors, &c., of the last will of William Hall, deceased, who are made defendants, by their answer interpose a claim that the mortgage was usurious in its inception, the usury growing out of the advantage gained by the mortgagees through the printing contract, which it is claimed was part and parcel of the transaction through which the moneys were loaned, for the security of which the chattel mortgage was in part made, and that the printing contract was exacted by the mortgagees and yielded by the mortgagors, and that the transaction was designed to secure to the mortgagees an advantage in the way of gain over and above the legal interest they would realize on the loan and forbearance of the money advanced and secured by the mortgage. These defendants also claim that the vice of usury enters into the Pond mortgage, which was assigned to Ditson & Co. at the time the mortgage and printing contract above-mentioned were made and delivered.

The plaintiff claims that the agreement should be set aside as unconscionable ; the executors claim that the mortgages ai’e void for usury.

Equity will not, as is urged by the learned counsel for the plaintiffs, allow a mortgagee to clog the equity of redemption with any bye agreement, and will not uphold any oppressive arrangement or advantage exacted by the mortgagee at the time of the loan of money.

But a careful consideration of the evidence fails to disclose anything in the circumstances under which the printing contract was executed hard or unconscionable on the part of Ditson & Co., or anything in a true sense unfair or inequitable in the arrangement, even though it be considered as standing by itself apart from the mortgage. It was not so regarded at the time, nor have subsequent events demonstrated it to be such. Carried out according to its true intent, the printing contract secured rights and interests of mutual advantage.

A similar agreement had been made by Hall & Son with William A. Pond in December, 1871,. on an occasion when they borrowed money from him. No complaint appears to have been made at any time that snch agreement was hard or unfair in its terms or operation, or that Pond had secured thereby any unfair advantage or disproportionate gain.

The fact that Hall & Son were willing, under the circumstances disclosed by the evidence, freely and of their own accord, to enter into a similar arrangement with Ditson & Co., would indicate that the arrangement was by them regarded as favorable to their interests.

The evidence does indeed justify the conclusion that the agreement for the loan of money by Ditson & Co., and the postponement of the payment of their existing claim against Hall & Son, the payment of which was to be secured by a chattel mortgage on the music plates and copyrights, was made at the same time when the terms of the printing contract were agreed upon.

In one sense they were truly part and parcel of one general arrangement, and were in the end formally put in shape on the same occasion at the office of Messrs. Estes & Barnard.

Yet under the evidence I cannot say that they were absolutely and unqualifiedly dependent the one on the other. It may well be that the fact that the printing contract was also tendered and to be executed, was a controlling reason inducing Ditson & Co. to agree to make the loan and postpone payment, and to take up the Pond and Morrison mortgages. But, in the end, after the Pond and Morrison mortgages had been assigned and the money paid therefor, and the mortgage to Ditson & Co. had been executed by Hall & Son, the option was distinctly and unqualifiedly left, with them as to whether they would execute the printing contract, and they without hesitation concluded to do so.

It is suggested by plaintiff’s counsel, that the offer to abandon the printing contract at this time, made by Ditson & Co., was neither sincere nor honest. I do not know that we are justified in detracting from the offer made by Ditson & Co., the elements of sincerity and honesty. In making the offer, Ditson & Co. may have supposed that Hall & Son would not withdraw, but that they would be still willing, and perhaps claim that the printing contract should be made and that they should assume the responsibility of making advances under it. I think that the speech and acts of parties are entitled to be considered as springing from good and honest motives when the facts and circumstances do not establish the contrary, and that parties mean what they say. But the fact that Ditson & Co. then expressed a willingness to give up the printing contract is distinctly proven, and strips the transaction of that hardness and severity which is sought to be impressed on it, if there be in fact any thing inequitable in its terms. There was a locus penitential for Hall & Son, and the option was tendered them of withdrawing from that part of the agreement.

That they then expressed a desire for the contract is well established by the evidence, and they freely made it. There is a fair inference to be drawn from the evidence that it was for the real advantage of Hall & Son that the printing contract with Ditson & Co. should be made. Hall & Son were in straightened circumstances ; they had not the means at hand to carry on the work of printing promptly. They were then largely in arrear to the printer for work theretofore done, and encountered difficulty in discharging the obligation, and further work was to be paid for as the work was done.

Under the printing contract Hall & Son were entitled to receive one-half of the profits of all music which Ditson & Co. should print from the plates over and above the costs and expense of printing and materials furnished.

While I can see that such arrangement would be of advantage to Hall & Son, I am not prepared to say that one-half the profits would be an undue proportion of advantage to be realized by Ditson & Co. for their advances, care and risk in carrying out the arrangement. Hall & Son reserved to themselves the right to print for their own business from the plates. The arrangement was well and clearly understood, and was without doubt deemed to be of mutual advantage. And when the contract was executed, Hall & Son expressed the hope that Ditson & Co. would produce and sell more music than Pond had done under his contract.

I cannot, therefore, conclude that there was anything in the circumstances under which this contract was made, or in the contract itself, which entitles the plaintiff to any relief against it for the reasons assigned by him. It was voluntarily and understandingly entered into by them, after an experience under a similar contract made some years before with Pond, through which they had a proper comprehension of the advantages and operation of such an arrangement. There is no satisfactory evidence that it was forced upon or exacted from them. They were under no compulsion; and I fail, even now, to see why the arrangement was not of advantage to them.

I do not think that the transaction is obnoxious to the vice of usury, as is urged by the executors of William Hall, deceased. The scheme, in my opinion from the evidence, was not resorted to by Ditson & Co. to realize more thon legal interest on the loan and forbearance of money. Although the two transactions, —the loan and forbearance of money and the printing contract, — were originally contemplated by the parties as parts of one general arrangement, yet they were in themselves divisible. The loan and forbearance of money and the printing contract are represented by separate instruments. The mortgage secured to Ditson & Co. legal interest on the moneys secured thereby. The printing contract provides for a distribution of profits to be realized on the music printed by Ditson & Co. on the plates of Hall & Son. The materials and necessary funds were to be supplied by Ditson & Co.

It was not stipulated by Hall & Son that there would be any profits. It was not an assured matter that there would be any gains. There might and might not be profits. The result was speculative — dependent upon the cost of production, and the result of sales.

Ditson & Co., who made the advances, assumed the risk of there being sufficient sales in the end at remunerative prices to justify the printing.

Conceding that Ditson & Co. originally made the loan and forbearance of money dependent upon the making of the printing contract, still I do not think that such arrangement would be necessarily usurious. The printing contract was a business operation, and by its terms is not shown in itself to be unfavorable to Hall & Son. The market was not at the time well supplied with their music, and it was essential to Hall & Son that it should be, to maintain the value of their copyrights and plates. Hall & Son were unable to conduct the business profitably. Ditson & Co. were responsible parties. The printing contract might well stand on its own merits as a good and satisfactory arrangement, separate and apart from the loan of money, and as truly beneficial to Hall & Son.

This case is in many respects analogous to Clarke v. Sheehan (47 N. Y. 188), and upon the principles therein announced the transaction is not usurious, and the same result applies to the Pond mortgage, of which they took an assignment. In disposing of the claims of the plaintiff and the executors of William Hall and son above discussed, I cannot resist tbe conclusion that the interposition of Ditson & Co. at the solicitation of William Hall, was under the evidence timely, considerate and advantageous to Hall & Son. They advanced the money, $10,000, to relieve Hall & Son from the Pond mortgage, which was due, and its payment urged. They advanced the money to satisfy the holder of the Morrison mortgage, and extended the payment of their own debt and made an additional loan of $4,000. They also took a printing contract for two years, by the terms of which, Hall & Son, besides reserving to themselves the right to print from the plates for their own trade, were entitled to receive one-half the profits on what Ditson & Co. might print. Tbe arrangement as a whole and in parts is not open to the objections urged.

[After disposing of an incidental question, the learned judge continued:]

I have carefully considered the evidence relating to the sale of the property under the mortgages, and cannot agree with the plaintiff’s counsel that the same was unfairly made, or that it should be set aside by occasion of any act or omission of Ditson & Co. I am, on the other hand, of the opinion from the evidence that the mortgagees made reasonable efforts to secure a favorable sale of the property after all attempts to adjust the matters with the plaintiffs had failed. I think that the statements made by the auctioneer and the defendant Haynes described the property covered by the mortgages with sufficient certainty at the time of the sale. The statement as to the number of plates was an estimate. It was not otherwise represented. But the announcement was that the entire catalogue would be sold: There were some missing plates, but Haynes stated they were useless, and it is not shown that his statements were untrue. These missing plates it was understood were not sold. Hall & Son’s catalogue, which was announced to be, and which was in fact sold, minus the missing plates, was well known to the music trade, and by the persons attending the sale. I do not see that any information desirable to secure a favorable sale was withheld.

It was stated by Haynes on the sale that the plates aggregated about fifteen thousand; there might be one or two thousand more or less. The valuable plates and compositions were, however, within a small compass. It turns out that there were over twenty thousand plates in all covered by the mortgage. Haynes had not counted the plates, and did not know the actual number. But the more important statement was, however, made that the whole of the catalogue would be sold except four or five hundred pieces which could not be found, and some plates destroyed by the Boston fire. And in respect to these it was said that they were of little value. The number of subjects was, however, given. The plaintiff was present at the sale, he made no correction of the statements of defendant Haynes. It cannot be said that the persons present at the sale and who well knew the catalogue, were not sufficiently advised of what was to be sold. I think they understood the subject and what was to be sold. The weight of evidence is that they were so advised. The efforts made by Ditson & Co. to secure the attendance at the sale, of the members of the board of music trade in the United States, then in session in New York, certainly was evidence of a desire on their part to secure a good sale of the property. It was evidence of an honest intention.

But as much cannot be said in favor of the plaintiff and the personal representatives of William Hall, deceased. Their efforts were evidently intended to depress and defeat the sale. The statements made by them and the claims interposed through them had the effect to discourage bidding on the property. And if through their efforts the property did not bring a fair price, I cannot see how a court of equity should interpose to aid them in setting aside the sale upon the ground that the property sold for less than its value.

Through the character of the notices and claims interposed, no other result could have been anticipated. The plaintiff put forward a claim of his wife to a portion of the property. The defendant, James F. Hall, a brother of plaintiff, interposed a claim of one-half interest in a large share of the copyrights. The executors of William Hall, deceased, objected to the sale, for the reason that they had had no notice thereof, and claimed it to be invalid. And one of the attorneys for the plaintiff who appeared for some other interest, also represented that William M. Tweed had a mortgage of $6,000 and interest since 1870 upon the property, which would be enforced against any one who should purchase. If the claims thus made were interposed in good faith, the property, I am satisfied, sold for'more than it was really worth subject to those claims. If the claims were not bona fide it was wrong to interpose them.

•The effect of the public sale under the chattel mortgages was to extinguish the outstanding equity of redemption (Chamberlain v. Martin, 43 Barb. 607; Ballou v. Cunningham, 60 Id. 425; Huggans v. Fryer, 1 Bans. 276).

The right of the mortgagee to purchase at the sale is recognized in Olcott v. Tioga R. R. Co. (27 N. Y. 546, 565-7). Tapen v. Richardson (3 Sup'm Ct. [T. & C.]), appears to be the other way, and holds that a purchase by the mortgagee does not bar the mortgagor’s equity of redemption. But that case rests upon Buffalo Steam Engine Works v. Sun Mutual Ins. Co. (17 N. Y. 403). This latter case, however, as is said by Selden, J., in Olcott v. Tioga R. R. Co. (supra), was disposed of on other grounds. The reasons why a mortgagee should be allowed to purchase at such sale are well stated by Selden, J. (See also same case, 40 Barb. 179).

It appears to me that with respect to the sale we are now considering, it was manifestly the true interest of all concerned that the mortgagees should not have been precluded from purchasing. From the notices and claims interposed by the plaintiff and others above described, and which must have been designed to prevent competition, and prevent a sale, it is evident that the mortgagees only would take the risk of purchasing at any thing approaching a fair price for the property. It would have been unjust in the extreme, that the mortgagees should be compelled to stand still and see the property covered by their mortgages, purchased by others at a trifling sum, and in this way lose all security for their claims. There was not the slightest impediment interposed by the-mortgagees or the person conducting the sale, to bidding. Every opportunity was offered to secure a satisfactory sale, and in the end Ditson & Co. were forced to take the property at their bid of $10,000.

They made every reasonable attempt before the property was struck down to them, by explanation through their attorney and Mr. Haynes, to meet the objections interposed, and break the force of the claims interposed, so as to invite bids, but their efforts were without avail. The notices and claims performed their work. Ditson & Co. are not responsible for their effect.

But were it otherwise, and that the equity of redemption has not been extinguished by the sale, yet the mortgagees are in possession and the time for the payment of the mortgages has long since expired. The legal title in the mortgagees is complete by the terms of the instruments. In order to redeem, the mortgagor must pay or tender the whole debt. Such payment or tender must be made or offered in good faith before suit brought (Stoddard v. Denison, 2 Sweeney, 54; Halstead v. Swartz, 46 How. Pr. 291).

To enforce his equity the plaintiff must do or offer to do equity, and that in an effective way. It is doubtful whether this action, judged by the allegations in the complaint, is strictly an action to redeem. But if it be regarded as such, the failure to have made any tender before suit brought is not satisfactorily excused-. The complaint does ask for an accounting, but the facts of the case do not satisfactorily show that in order to place himself in an attitude to ask for equitable relief such accounting is necessary. The plaintiff was himself in possession of facts sufficient to enable him to make a tender before suit brought, if it was his design to redeem the property.

Nor do I think that this action can be maintained for an accounting. The evidence shows substantially that the items of profit to be distributed under the printing contract were known when any amount of printing was done, and that Hall & So.n were advised thereof at the time.

And again, in December, 1876, Ditson & Co. and the plaintiff went over the accounts and agreed upon a balance. This was upon an occasion when all the matters between them were the subject of discussion preparatory to a contemplated settlement. The amount due on the mortgages was reached as were the credits in favor of Hall & Son from all sources. No errors are stated in the complaint with regard to the result then reached, nor do any in fact now appear. The amount of indebtedness in favor of Ditson & Co. was presumably correct. In an agreement made December 29, 1876, between Thomas J. Hall, the plaintiff, and Ditson & Co., the amount of their claim is stated at $21,000. This was after the examination of the accounts made by the parties.

Under such circumstances, and in view of the fact that Ditson & Co. on the trial offered to relinquish their entire claim for a deficiency amounting to eleven thousand dollars and upwards, I cannot think the action should be retained for such purpose.

Nor do I think that the action should be held to try the title of the defendant James F. Hall to any portion of the property. That is a question between James P. Hall and Ditson & Co., to be determined in an appropriate action in their behalf.

As the plaintiff is not found to have any just ground or cause for equitable relief, the action cannot properly dispose of rights between the co-defendants not related to the cause of action disclosed in the complaint. If the defendant James P. Hall has any claim to the property through a title superior to that of the mortgagors, he must assert it in an independent action brought for the purpose of enforcing his claims and rights. These rights are not involved in the question whether the plaintiff may redeem by paying the mortgages, or whether the sale should be set aside for the reasons stated, or whether the plaintiff should have an account. And a result being reached adverse to the plaintiff’s claim, the complaint must be dismissed with costs, without prejudice to the right of James P. Hall to take and maintain any action in the premises he may deem advisable to assert any right or claim he may have to the property, or any part thereof. And it may be that it was too late after a sale under a chattel mortgage, by which the equity of redemption of the mortgagor has been extinguished, to raise the question of usury in the original transaction, and especially in the manner in which it is interposed herein by a defendant against the claims of a co-defendant. But I deemed it advisible to disregard the objection, and to consider that question in consideration with the subject to which it is in a measure kindred, although not disclosed by the complaint, nor a part oí the plaintiff’s cause of action.

The complaint of the plaintiff is dismissed, as is that of the co-defendants of Ditson & Co. against them. The defendant will recover costs against the plaintiff, but not as to his co-defendants.  