I dissent. I think that the evidence clearly establishes a loan made by the plaintiff to the defendant and expenses incurred by him in connection with the foreclosure of a mortgage, which expenses were incurred at defendant’s request and upon his promise to repay the same. It is for a debt thus incurred that this action is brought. The note referred to in the evidence, and the assignment of the mortgage, were made as collateral security for the payment of this debt. Under such circumstances plaintiff may recover on the original indebtedness with*522out regard to the collateral. It is probably true that upon payment of the debt defendant would be entitled to an accounting as to the collateral and the return thereof, but in his answer in this case defendant seeks no affirmative relief by way of prayer for an accounting, and that issue was not before the court for determination. The suggestion by the learned trial justice before whom this case was tried, that the parties might come in before him to take and state the account, was manifestly a voluntary offer upon his part to assist them in the final settlement of all matters in controversy between them. I do not think that he intended to intimate that as matter of right an accounting can be had informally and effectively in another branch of the court before the individual who was the trial justice 'in the case at bar.”
Jenks,. P. J., concurred.
Judgment and order reversed and! new trial granted, costs to abide the event.