¶1Judgment affirmed, with costs, on opinion of Dykman, J., at Special Term.
¶2All concurred.
¶3•The following is the opinion of Dykman, J., at Special Term:
¶4The defendant, Quick, held a bill of sale of the watch in question to secure the payment of fifty dollars and the watch was in his possession. Holding the bill of sale, he, with James Holian, executed a-chattel mortgage upon the watch to 'the plaintiff to secure the payment of ninety-seven dollars- and six cents. The mortgage was expressly made subject to the claim of Quick for fifty dollars for which he held the bill of sale of the watch. It does not appear who owed the debt to secure which the mortgage was made, but presumably it was Holian’s debt as there is no other apparent reason for his joining in the mortgage. The bill of sale to Quick for the watch, the agreement contained in the receipt of Quick 'to the plaintiff, and the chattel mortgage from Quick and Holian to the plaintiff, must be construed together, and the legal rights of the parties must be deduced from the transactions which they embody. In that view the position is this: Quick had the watch and a bill of sale for it as security for the payment of fifty dollars. - That vested the absolute title of the watch in -him, of which he could be divested' only by the payment of fifty dollars. The chattel mortgage- recognizes and reserves his rights, and the agreement refers to the mortgage. It is in fact a second mortgage or rather a mortgage upon the equity of redemption: The defendant could not, therefore^ be required to surrender the watch until he was paid fifty dollars; nothing but such payment could divest him of his title and right of possession.
¶5It follows that this action must fail, and the complaint must be dismissed, with costs..