
    HENRY WISSER, Plaintiff and Appellant, v. JAMES O’BRIEN, Sheriff, etc., Defendant and Respondent.
    I. Assumption on Tkial, Effect of.—Theoby on "which Tbial
    "WAS HAD.
    1. Where on the trial a certain fact was assumed to be either immaterial or, if material, too incontrovertible to be disputed, a judgment will not be reversed on the ground that the fact was material, and that it had not been proved.
    1. Assumption presumed.
    
    When no motion is made, at the close of plaintiff's case, to dismiss the complaint on ground that the fact has not been proved, and the fact is of such character that proof of it might be supplied, and the defendant goes into evidence, the assumption will be presumed.
    
      II. Judgment sustained, although ground on which it was
    based erroneous.—Qualification of Rule as to.
    1. Although, if a judgment or order or ruling is right in point of law, the fact that it cannot be sustained on the theory of law on which the court below proceeded, is no reason for reversing it, yet that rule is applied only when all'the facts are before the court, and from them it appears that the correction of the theoretical error is not at all important to a correct decision of the question involved.
    1. Thus it will not he applied either when the erroneous view of the law expressed by the court below induced the appellant to abstain from offering- evidence which would have been material to him under the view taken by the appellate court, or wJiere it appears that a material fact was without objection assumed to exist.
    III. Mortgage Chattel.
    1. BefUing, when not necessa/ry.
    
    1. When it has been once refiled within the thirty days next preceding the expiration of the first year, no further refiling is necessary.
    2. Payable on Demand.
    
    1. Can an action be maintained by the mortgagee against the sheriff, for taking the mortgaged property under an execution against the mortgagor, without a previous demand by the mortgagee on the mortgagor ? Query.
    2. Has such a mortgagor a leviable interest in the mortgaged property ? Query.
    Before Freedman and Curtis, JJ.
    
      Decided November 30, 1872.
    The action was brought as an action of claim and delivery under the Code. It was brought by plaintiff, as mortgagee of chattels, against the defendant, who seized them under an execution against the mortgagor.
    The defendant claimed that at the time of the seizure the mortgagor had a leviable interest in the property.
    The mortgage was payable on demand. It was executed May 4th, 1867 ; filed May 5th, 1867; refiled May 4th, 1868, and May 8th, 1869.
    The defendant seized the property under an execution issued August 5th, 1869, on a judgment against the mortgagor of December 4th, 1867.
    Upon the trial evidence was given on both sides, and at its close the court was requested by plaintiff’s counsel to direct a verdict for the plaintiff, which motion the court denied, and to which ruling plaintiff’s counsel duly excepted.
    The court, thereupon, on motion of defendant’s counsel, directed a verdict for defendant, to which direction plaintiff’s counsel duly excepted.
    Upon the verdict, rendered as directed, judgment was entered, dismissing plaintiff’s complaint upon the merits, and for defendant’s costs, and the plaintiff appealed.
    
      Joseph M. Dixon, counsel for appellant.
    
      A. J. Vanderpoel, counsel for respondent.
   By the Court.—Freedman, J.

It may well be that the doctrine of Brown v. Cook, 3 E. D. Smith, 123, and Howland v. Willett, 3 Sandf. 607, to the effect, that where a chattel mortgage is payable on demand, it is payable'immediately, and no demand of payment is necessary, before the mortgagee can maintain an action against the sheriff for taking the mortgaged property under an execution against the mortgagor, has been shaken by the decisions of the Court of Appeals in Hull v. Carnley, 1 Kern. 501; Hull y. Carnley, executrix, 17 N. Y. 202; Groulett v. Asseler, 22 N. Y. 225; Manning v. Monahan, 23 N. Y. 539, and S. C. 28 N. Y. 585, by which that tribunal, as the court of last resort, settled the law of this State to be that the mortgagor’s possessory right for a definite period in the chattels mortgaged, coupled with his right of redemption, constitutes an interest which is liable to levy and sale on execution. But whether such really is or is not the indirect result of the last-named decisions, and whether a mortgagor’s possessory right under a chattel mortgage payable on demand, and therefore payable immediately, does or does not constitute a leviable interest within the true meaning of these decisions, are questions which we do not deem necessary to determine here.

The objection, that plaintiff failed to show a demand upon the mortgagor, does not seem to have been raised below. At the close of plaintiff’s evidence, no motion was made for a non-suit on the ground that plaintiff had not shown enough to maintain the action. The proof showed that a written demand for the return of the goods had been made by plaintiff upon the sheriff, prior to the commencement of the action. But as to a demand upon the mortgagor, the case appears to have been tried upon the assumption by the court as well as the counsel for the respective parties, either that such demand was not necessary, or, if material, that it was duly made, and that such fact was too incontrovertible to be disputed. Under these circumstances, and in view of the fact that appellant’s counsel has strenuously insisted—and we are inclined to believe—that, if the obj ection had been raised, it could and would have been readily obviated by proof, the ends of justice require that we should not entertain the objection, if it is one, on appeal for the first time. Although it is true that, if a judgment or order or ruling is right in point of law, the fact that it cannot be sustained upon the theory' of law on which the court below proceeded, is no reason for reversing it, yet it is equally true that that rule is enforced only when all the facts are before the court, and from them it appears that the correction of the theoretical error is not at all important to a correct decision of the question involved. Whenever there is reason to believe that an erroneous view of the law, expressed and enforced by the court below, induced the appellant to abstain from offering evidence, which would have been material to him under the view taken by the appellate court, or whenever it is made to appear that a material fact was assumed in the court below to exist, without any objection on account of the want of evidence thereof, the appellate court, in either case, will decline to enforce the rule referred to.

The only question, therefore, remaining for our consideration is, whether or not plaintiff’s mortgage, which has not "been impeached as fraudulent against creditors, ceased to "be valid against the execution creditors represented by the defendant, by reason of plaintiff’s omission to refile a true copy pursuant to the requirements of the statute. The evidence shows that the mortgage, which was payable on demand, was executed on the 4th of May, 1867 ; that the following day a copy of it was duly filed; that a copy was refiled on the 4th of May, 1868 ; that still another copy was filed on the 8th of May, 1869, and that the sheriff seized the property under an execution issued on the 5th of August, 1869, on a judgment-obtained against the mortgagor on the 4th of December, 1867. Consequently, in directing a verdict against the plaintiff on the merits, no objection having been raised on account of the absence of proof above referred to, Justice McCttnn, who presided at the trial, must have held, as appellant’s counsel insisted he did hold, that the refiling of the 8th of May, 1869, was too late, and for that reason was no compliance with the requirements of the statute. But as the .commissioners of appeals have since held in Newell v. Warren, 44 N. Y. 244, that a mortgage once refiled within thirty days next preceding the expiration of the first year continues valid without further refiling in subsequent years, the said ruling constituted error, for which the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.  