While an execution upon a judgment was outstanding in the hands of the sheriff and after a levy on the judgment debtor’s property had been made, the plaintiff, as the assignee of the judgment, to secure the payment of the judgment and other indebtedness accepted from the judgment debtor a chattel mortgage upon property which was already subject to the levy. The chattel mortgage in addition to reciting that it was intended to secure the payment of the indebtedness, contained an express agreement on the part of the judgment debtor to pay the indebtedness, including the judgment, at a future date. The mortgage also contained a warranty by the mortgagorJthat the property covered by the mortgage was free from liens. The acceptance of the chattel *508mortgage so far as now appears was intended to extend the debtor’s time for the payment of the judgment and consequently suspended the judgment creditor’s right to enforce the judgment until the due date of the chattel mortgage. The plaintiff’s situation after accepting the debtor’s promise to pay at a later date was analogous to that of the holder of a claim after the acceptance of a promissory note due at a future date for the amount of the claim. (Matter of Utica Nat. Brewing Co., 154 N. Y. 268; Jagger Iron Co. v. Walker, 76 id. 521.)
The chattel mortgage was inconsistent with the execution then outstanding and rendered the execution void. The assignee of the judgment is not entitled to recover damages against the sheriff for returning the execution unsatisfied.
The judgment should- be reversed on the law and facts and a new trial granted, with costs to appellant to abide event. The decision of the trial justice fails to set forth the full substance of the chattel mortgage or the intent of the plaintiff in accepting it in relation to the time for the payment of the judgment, and the reversal, so far as it is on the facts, is a matter of discretion based upon the failure to include such facts in the decision.
All concur, except Hubbs, P. J., and Clark, J., who dissent and vote for affirmance in a memorandum -by Hubbs, P. J. Present' — Hubbs,. P. J., Clark, Sears, Taylor and Sawyer, JJ.