#### Fred Emerson, Appellant, *v.*Delmar J. Knapp, Respondent.

Fourth Department,

January 6, 1909.

Bien — promissory note with provision that chattel stands as security — rights of lienor — waiver of exemption from execution.

Where a promissory note contains a clause stating that “ one black horse named Bill, is holding until this note is paid,” the maker, as between the parties, must be deemed to have intended to give a lien upon the horse equivalent to a chattel mortgage. ' ,

While the lienor may bring formal foreclosure, he is not required to do so, but may bring a simple action on the note, and after judgment may levy upon the horse, even though the animal would otherwise be exempt from execution.

The creation of such lien was a waiver of any claim to exemption.

Appeal by the plaintiff, Fred Emerson, from a judgment of the County Court of Tates county, entered in the office of the clerk of said county on the 2d day of October, 1908, reversing a judgment of the Justice’s Court in favor of plaintiff for $125 and costs.

*M. A. Leary,*for the appellant.

*Huson & Lincoln,*for the respondent.

Williams, J.:

The judgment of the County Court should be affirmed, with costs.

The action was brought to recover damages for the conversion of a horse, which was claimed to be exempt from levy and sale on execution, but which the defendant, as sheriff of Tates county, levied upon and sold under a judgment and execution against this plaintiff. The judgment sought to be enforced by the execution was recovered upon a note for $50, made by this plaintiff, which was in the ordinary form, except that it contained this clause; *“*One *828black horse named Bill, is holding until this note is paid.” This was the same horse sold by the sheriff, for the conversion of which this action was brought.

The only question involved in this appeal is whether by the clause in the note, above referred to, the right of exemption,-which would otherwise exist as to this horse was waived, barred or lost. The County Court held the clause in the note constituted a chattel mortgage between the parties, and the maker of the note was thereby estopped from claiming exemption for the horse.

The giving of the note for a valid consideration was settled in the action thereon, and cannot be again litigated here. The clause with regard to the horse therein contained was clearly intended to give the payee a lien upon the horse for the payment of the note and in effect as between the parties was a chattel mortgage. There might have been a formal foreclosure of the lien for the collection of the note, but a simple action upon the note was proper, and when judgment was recovered in that action, and an execution issued and levied upon the horse, the end sought was the enforcement of the lien for the payment of the debt secured. When the debtor gave the lien upon the horse, he in effect waived any right he might otherwise have to claim exemption of the horse from any process of the court which sought to apply the proceeds thereof to the payment of the note. The debtor by creating the lien was estopped from asserting the exemption. (See *McMahon*v. *Cook,*107 App. Div. 150.)

The lien would not have been effectual if the debtor might, nevertheless, claim the exemption. The County Court very properly reversed the judgment of the Justice’s Court.

Any other result in the case would be based upon technicalities, and would defeat substantial justice between the parties. '

We do not consider the claim of duress and blackmail alleged to have entered into the inception of the note, because that question is not properly here. The former action was a complete adjudication of all such questions which related to the validity and consideration of the note, as already stated.

All concurred.

Judgment affirmed, with costs.