#### Francis B. Thurber *et al.,*Resp’ts, *v.*John Stimmel, App’lt.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

Appeal.

If there is any evidence in a case upon which the findings of a judge can he based this court will not decide upon its credibility even though some of it might perhaps partake of the character of conclusions of the witness.

Appeal from the general term, first department, affirming a judgment for the plaintiffs, entered upon the decision of a single judge at special term.

The action was brought to recover an alleged surplus arising upon the sale of certain furniture upon the foreclosure of a chattel mortgage, which surplus the plaintiffs claimed belonged to them as subsequent lienors.

The judge, before whom the case was tried, found the following facts: On the 17th day of June, 1884, Charles A. Swan executed and delivered to the plaintiffs, who are copartners in business, a chattel mortgage on the furniture of the Hotel Hamilton, New York city, to secure an indebtedness of Swan to plaintiffs of $1,515.47, evidenced by his note of that amount, payable on demand. The mortgage was duly filed, and ho part of the indebtedness secured by it has been paid. In 1883 Swan had executed and delivered to one Maltby Gf. Lane a chattel mortgage covering the same furniture to secure the payment of an indebtedness of Swan to him of over $6,000. In Hovember, 1884, there then being over $7,000 due on this mortgage, and Lane threatening to foreclose, Swan paid on the mortgage enough to reduce the amount due thereon to $3,500; this payment was made in his (Swan’s) notes, endorsed by one Deming for $3,400, *690and the difference of about $200 Swan paid in cash, which left due on the mortgage-$3,500. The latter sum was advanced by-defendant, and thereupon Lane assigned that mortgage to defendant, who foreclosed the same, and sold the property so covered by his mortgage and plaintiffs’ mortgage in the month, of September, 1885, and netted on such sale $4,551.88. Plaintiffs-claim the balance of the fund over and above $3,500, and interest-from November, 1884, to October 1, 1885. The defendant, however, claims there is more due him from Swan than was realized, on the sale, and refusing to account and pay over to the plaintiffs, this suit was begun October 31, 1885.

The judge decided as matter of law that the balance of the sum of $4,551.88 over and above $3,500, and interest from November, 1884, to October 1, 1885, belonged to the plaintiffs, and he ordered judgment therefor with interest from the 1st day of October, 1885, and costs.

*Abner 0.*Thomas, for app’lt; *A.*More, for resp’ts.

1

 Affirming 16 N. Y. State Rep., 1003.

Peckham, J.

The facts stated by the judge clearly warrant his conclusion of law in favor of the claim of the plaintiffs.- The only question for us is to inquire whether there is any evidence in the case upon which the findings can be based. A careful perusal of the evidence brings us to the conclusion that there is. Some of the testimony might, perhaps, be said to jaartake of the character of conclusions of the witness, but there is evidence which, if believed, is sufficient to show that the mortgage in Lane’s hands was paid down to $3,500 when he assigned it to defendant, and that the latter took it as a valid lien for that amount only. We cannot decide upon its credibility. It may be that the defendant has not secured what he thought he was obtaining when he took the assignment of the mortgage, but in the face of the evidence and of the findings of the court below, we can give him no relief.

The judgment must be affirmed, with costs.

All concur.