(Supreme Court, Appellate Term. December 27, 1897.) 1. CHATTEL MORTGAGES-FAILURE TO REFILE. Under Laws 1895, c. 354, requiring the yearly refiling of a chattel mortgage as against subsequent purchasers or mortgagees and others, the term "subsequent" means subsequent to the time for refiling, and not subsequent to the original filing; and therefore one who purchases the chattels during the first year after a filing can take no advantage of a subsequent failure to refile. 2. ASSIGNMENT-CLAIM FOR CONVERSION. Under Code Civ. Proc. § 1910, permitting the assignment of any claim or demand except such as are there specified, a claim for conversion, not being among the exceptions, may therefore be assigned. Appeal from Seventh district court. Action by Abraham H. Wolff against Herman Rausch. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before DALY, P. J., and McADAM and BISCHOFF, JJ. Joseph I. Green, for appellant. Oscar J. Hochstadter, for respondent. DALY, P. J. The plaintiff sues as the assignee of Julius H. Horwitz, who had a cause of action against the defendant for damages for the conversion of a piano. The piano was mortgaged to Horwitz by the owner, who afterwards, and while the mortgage was in force, transferred the piano to the defendant. The defendant refused to deliver it on the demand of the mortgagee, and resisted this action on the ground that the mortgage had not been renewed, by the filing of a copy, within the time prescribed by the statute. The chattel mortgage was made and filed March 9, 1896, and expired for want of renewal on March 9, 1897. The defendant purchased the mortgaged chattel on March 8, 1897, one day before the mortgage expired. The statute prescribes that every mortgage filed in pursuance of the act "shall cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless, within thirty days next preceding the expiration of each and every term of one year after the filing of such mortgage a statement describing such mortgage, stating the names of the parties, the time when and the place where filed, and exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof, shall be again filed in the office of the clerk or register aforesaid of the town or city where the mortgagor shall then reside, if he is then a resident of the town or city where the mortgage or a copy thereof was last filed." Laws 1895, c. 354. The contention of the defendant is that the term "subsequent purchasers" in the statute embraces one who purchases the mortgaged property at any time after the filing of the mortgage, and before the expiration of a year from the filing, and that as to such persons the mortgage ceases to be a valid lien after the expiration of the year, if not renewed by refiling. A different construction has been placed upon a like provision in the former statute, and the term "subsequent" was held to mean after the time when the mortgage is to be refiled; so that a mortgage executed and filed in November, 1846, but never refiled, was held valid as against a mortgage executed in January, 1847, and refiled annually till 1850, the chattels in the meantime remaining in the mortgagor's possession. Meech v. Patchin, 14 N. Y. 71. The case before us is like the one cited, and the language of the court is applicable here. When the defendant took his bill of sale, the Horwitz mortgage was on file, and he accordingly had the notice of it which the statute contemplated. The year from the time it was filed had not elapsed, and no fault or want of diligence had, therefore, happened on the part of the mortgagee, whose mortgage was in full vigor, and the bill of sale was taken subject to it. Their respective rights had become fixed, and the want of diligence of the mortgagee by refiling was of no importance as against the defendant. Meech v. Patchin, 14 N. Y. 73, 74. As to one who purchases before the expiration of the year from the first filing of the mortgage, no refiling is necessary; the term "subsequent" in the provision that the mortgage shall cease to be valid as against subsequent purchasers and mortgagees in good faith means subsequent to the expiration of the year; that is, after the time for refiling has elapsed. Dillingham v. Bott, 37 N. Y. 198. The judgment, therefore, that the mortgage of the plaintiff's assignee had ceased to be a valid lien against the defendant, who purchased the chattel before the expiration of a year from the time of filing the mortgage, because it was not renewed by refiling, cannot be sustained. The point is taken by the appellant that the cause of action for damages for conversion is not assignable, but no authority is cited for the proposition. Code, § 1910, permits the assignment of any claim or demand, except such as are specified, and a claim for conversion is not among the exceptions. Judgment should be reversed, and a new trial ordered, with costs to appellant to abide event. All concur. STOKES v. HYDE. (Supreme Court, Appellate Division, First Department. SECOND APPEAL-LAW OF THE CASE. December 31, 1897.) Where a judgment is reversed by the appellate division of the Second department, and on a new trial the facts are substantially the same as on the first trial, the decision of such division is the law of the case on appeal to the appellate division, First department. Appeal from special term, New York county. Action by William E. D. Stokes against Frederick E. Hyde for specific performance. From a judgment dismissing his complaint, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ. and 82 New York State Reporter. Clarence L. Westcott, for appellant. PER CURIAM. Upon the first trial of this action specific performance was decreed, the court holding that the title tendered by the plaintiff was marketable. The defendant appealed to this appellate division, and that appeal was transferred to the appellate division in the Second department. That appellate division reversed the judgment, and ordered a new trial, holding that plaintiff's title was not marketable. The opinion was unanimous, and it will be found reported in 14 App. Div. 530, 44 N. Y. Supp. 132. Upon the new trial thus awarded the plaintiff's complaint was dismissed. The facts were substantially the same as upon the first trial. The decision of the appellate division in the Second department is, under the circumstances, the law of the case in this court. The judgment should therefore be affirmed, with costs. December 31, 1897.) CONTINENTAL NAT. BANK OF NEW YORK v. MYERLE et al. (Supreme Court, Appellate Division, First Department. RECEIVERS-APPOINTMENT-ALLOWING CREDITORS CONTROL OF FUNDS. In an equitable action by one claimant of a fund against other claimants, to secure an adjudication upon conflicting claims, it appeared that the plaintiff had a prior claim for $10,000; that a claim of the Tradesmen's National Bank, a defendant, came next, and, according to the latter's statement, more than equaled the balance of the fund; then followed a large claim of the plaintiff; and then those of numerous defendants. Upon plaintiff's motion for the appointment of a receiver, there was no evidence, though there were suggestions, that the claim of the Tradesmen's Bank was not enforceable against the fund. Held that, in view of the assent of all the defendants thereto, and the solvent and responsible character of the two banks, it was proper, in lieu of a receivership, to permit the plaintiff to hold $10,000, and the Tradesmen's Bank the balance, pending the suit, and as a deposit of a fund in court, subject to the orders and judgment of the court. Van Brunt, P. J., dissenting. Appeal from special term. Suit by the Continental National Bank of New York against David Myerle, executor, and others. From an order granting an injunction, and appointing a receiver, defendants appeal. Modified. The action is an equitable one, by one claimant, the plaintiff, against the other claimants, to protect the lien of the plaintiff, and secure an adjudication in one suit upon several conflicting claims to a sum of $129,811.45 which was obtained from the United States government upon a contract with the navy department for certain work done upon the iron-clad monitor Monadnock. The following facts appear from the complaint and affidavits: Phineas Burgess made a contract with the navy department to do work upon the monitor, but before its completion the work was suspended by the government, and long delays occurred, so that the contract was not completed until 1883. With Burgess were associated as partners in the contract the defendant James F. Secor and one Charles A. Secor, under the firm name of Burgess & Secor. Pending the completion of such contract, Burgess or his firm borrowed sums of money from the plaintiff and from the defendant the Tradesmen's National Bank, and as security therefor assigned proportionate parts of the amount to be recovered against the government. On July 8, 1878, in consideration of value received from the firm of Zeno Secor & Co. (composed of Zeno Secor and the said James F. and Charles A. Secor), who appear in some way to have been interested in the contract, Burgess executed Exhibit A, by which he agreed to deliver to or deposit with the plaintiff a United States navy voucher for a sum equal to $10,000, as soon as he should receive the same from the government on account of his work, as security for the payment of a note for $10,000 made by Zeno Secor & Co., or any note given in extension thereof. This note has been renewed from time to time, and a renewal note for such amount, included with other sums, is now outstanding, and held by the plaintiff. On December 9, 1883, Burgess & Secor and the individual members of that firm assigned all their claims against the government under the contract to the Tradesmen's National Bank as security for moneys theretofore or thereafter to be loaned by that bank to the said firm or persons, or any of them. The claim of the Tradesmen's Bank for money so advanced amounts to $69,937.74 principal, and, including interest, to $122,271.68. Phineas Burgess died in November, 1884, leaving a will, whereof the defendant Myerle is executor. Before his death he presented his claim for compensation to the navy department, which in 1885 was referred to the United States court of claims. In 1886, Myerle, as executor, commenced an action in the court of claims to recover the amount due upon said contract, and on January 27, 1897, obtained a judgment for the amount of the fund herein. By his will Burgess bequeathed to Charles A. and James F. Secor and Myerle all his claims under the contract. Charles A. Secor died in December, 1884; his administrator, William H. Secor, has also died; and the defendant James F. Secor is the sole surviving partner of Burgess & Secor. Zeno Secor is also deceased, and James F. Secor is sole surviving and liquidating partner of Zeno Secor & Co. On September 25, 1885, the plaintiff received a pledge of the whole of the award which the court of claims might thereafter grant on account of the Monadnock, subject to the claim thereon of the defendant the Tradesmen's National Bank. The indebtedness to the plaintiff, which this instrument was intended to secure, as claimed by the plaintiff, exceeds the sum of $75,000. It was signed by William H. Secor, as administrator of Charles A. Secor, deceased; Zeno Secor & Co., in liquidation; James F. Secor; Burgess & Secor, "as to Charles A. Secor's and James F. Secor's interest in said firm and in above claim"; and by David Myerle, "as executor of Phineas Burgess, as to promised lien of $10,000 on his interest in above claims." It further appears that there are outstanding large unsettled claims for counsel fees in connection with collecting the claim from the government, and that the defendants Telford and Vanderbilt claim a transfer or some equitable appropriation of part of the fund. These facts are shown by the complaint and supporting affidavits on behalf of the plaintiff, and the answering affidavits on the part of the defendants, which were used upon the motion for an injunction and a receiver during the pendency of the action. The court below granted the motion, stating in its opinion that it was impossible, in view of the disagreement between the parties, to say how much each of the parties was entitled to of the fund, and that this could only be determined after a trial, that the form of action was proper, and that, pending it, it was but right that the fund should be held intact; and he continued the injunction and appointed a receiver; and it is from the order thereupon entered that the defendants appeal. Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O'BRIEN, and INGRAHAM, JJ. Walter S. Logan, for appellants. John L. Cadwalader, for respondent. O'BRIEN, J. We agree with the view, taken by the judge below, that the action is proper, and that the fund should be held subject to the judgment to be entered therein. But we have been impressed with the arguments based upon the expense and hardship which would result from having the fund remain in the hands of the re and 82 New York State Reporter. ceiver, and we have examined the facts with a view of seeing whether some other disposition might not be made, which, without determining the conflicting claims, would be more equitable than allowing the fund to remain intact in the receiver's hands. # In point of time, the claim of the plaintiff as to the $10,000 voucher takes precedence, and if it can be shown that the amount finally awarded by the government represents to that extent the navy voucher pledged as collateral security to the plaintiff, then the plaintiff should have awarded to it that sum out of the fund. There does not appear to have been any interest allowed by the government, nor do we find any language in the assignment (Exhibit A) from which it can be inferred that $10,000 and interest was pledged; the instrument referred to being one by which Phineas Burgess agreed "to deliver to or deposit with the Continental National Bank a U. S. navy voucher for a sum equal to ten thousand ($10,000) dollars, said voucher to be held as collateral security for the pay. ment of a certain promissory note made by Zeno Secor & Co. for ten thousand ($10,000) dollars, or any note given in extension thereof." It will be noticed that this is not an agreement to guaranty or pay the note held by the plaintiff, but a contract to deliver to it a voucher for $10,000, which, when received, the bank might hold or apply as collateral security on account of the note. The right to this sum of $10,000 will, of course, necessarily depend upon whether the plaintiff can connect the United States navy voucher for $10,000 with the judgment for $129,811.45 rendered by the court of claims. As the government does not allow or pay interest, and no interest is shown to have been included in this judgment, it would apparently restrict the claim of the plaintiff upon this instrument to $10,000. Next in order of time is the assignment to the Tradesmen's National Bank. With respect to that the substantial question is as to the amount of the claim, of which the plaintiff pleads ignorance, but in the affidavit of the plaintiff's president it is said: "It is, I believe, somewhere between thirty and forty thousand dollars, but I cannot state accurately." On the part of the defendants we have the affidavit of the cashier of the Tradesmen's Bank and of the only surviving member of the firm of Burgess & Secor, reciting that the amount due that bank upon the notes of Phineas Burgess, Burgess & Secor, and Charles A. Secor, amounts, with interest, to $122,271.68. If this claim, together with the plaintiff's of $10,000, should be sustained, then it is evident that the fund would be entirely exhausted. In fact, there will not be enough to pay these claims in full, because there are concededly certain amounts which must first be deducted for counsel fees in obtaining the award from the government, which the court below recognized, and directed that the counsel should be allowed to have their fees fixed and paid out of the fund, leaving the balance to be adjusted between the conflicting claimants in the action. Were this the whole of the case, the disposition to be made of the fund would be simple. But we have next in order the claim of the plaintiff to the fund under a subsequent assignment, which is |