Weil v. Levy , 80 Hun 382 ( 1894 )

BROWH, P. J.

The interlocutory judgment in this action is appealable. Code Civ. Proc. § 1349. Upon the evidence in the case the defendant was a trustee of the chattel mortgage for the payment of the two notes held by himself and the plaintiff. The complaint alleged that it was given “as collateral security for the payment of said two notes,” and that allegation was admitted by the answer. . Coggeshall, the payee of the notes and the mortgagee, testified that the agreement at the time of the assignment was that defendant was to pay his own note and turn the balance over to him for the payment of plaintiff’s note, and this was substantially corroborated by Mr. Lublin, who drew the assignment. After defendant took possession of the mortgaged property, the evidence tended to show bad faith in relation to the sale thereof. But whether there was bad faith or whether there was a bona fide sale are questions ■ which have not been determined. The court in its decision did not find that there had not been a sale, but it refused, on defendant’s request, to find that there had been one, and this question is left to be determined by the referee. It did decide, however, that the assignment of the mortgage was executed and delivered to defendant for the benefit of the holder of said two notes secured thereby, and that defendant had taken possession of the mortgaged property. This entitled plaintiff to an accounting, and that is all that the interlocutory judgment has determined. The value of the mortgaged property, and whether there was a bona fide sale thereof, and what sum defendant received or is to receive therefor, are questions to be determined by the referee appointed by the judgment. The appellant claims that, as his note matured before that held by plaintiff, it carried with it a pro tanto, and not pro rata, interest in the security. This proposition is not now before us. The trial court did not decide to the contrary, and no exception presents the question for review. It will be determined by the final judgment that will be entered upon the referee’s report, and until that is rendered discussion of the question is premature. The judgment is affirmed, with • costs.