dissenting:
Two appeals were taken in this case, one by the plaintiff and one by the defendant Bowerman.
• The appeal of the plaintiff rests on the ground, sought to be maintained by a series of propositions, that the mortgagor had power to execute the mortgage which he gave, embracing the whole property described and not one-fourth of it only. On the previous appeal in this action we decided that question adversely to the *544plaintiff, and we see no reason to change tbe judgment then pronounced.
The defendant Bowerman invokes our consideration of several propositions in reference to his alleged liability for a deficiency. One of them is that there was no consideration for the bond which he gave as collateral to the bond and mortgage of Lawrence S. Smith, already referred to. What occurred in reference to the bond and what led to its execution is stated by Mr. Turner in the case, and is as follows: “I am one of the law firm of Turner, Kirkland & McClure; we do now, and in 1869 did, some business for the plaintiff; in 1869, I think, in the month of June, Mr. Winston, the president of the plaintiff, placed in my hands the mortgage of Lawrence Shuster Smith, executor, etc., now under foreclosure in this action; that was delivered to the plaintiff April 4, 1868, and I was directed to foreclose the same; I put in the requisite searches and prepared the complaint; before the papers were served the defendant, Lawrence Shuster Smith, called on me and offered to execute new papers, and to give personal security if the loan could be permitted to continue; the plaintiff agreed to this, and I prepared the confirmatory mortgage, which was executed by Mr. Smith and his wife, and also the collateral bonds of Bower-man, Cameron and Bolton, which they executed; on my delivering those to the plaintiff, I was authorized to discontinue the foreclosure proceedings, and did discontinue them and returned the original complaint to the plaintiff; no papers were served in the foreclosure suit; Smith paid the fee; there was no written agreement to my knowledge in reference to the matter.”
The bond itself is payable on demand; it thus appears that there was no agreement to extend the time for the payment of the original indebtedness. On the contrary, the pre-existing obligation remained in full force and the bond of Bowerman and others, which was a collateral security, was entirely independent of it. As already suggested, it was an. obligation which was payable on demand. There is no evidence in the case to show that there was any other understanding or agreement than that there should be a continuance of the bond and mortgage. But no definite period was named. The transaction was a mere indulgence therefore and for no stipulated period. There was nothing, from aught that appears in the *545case or the papers executed, to prevent the plaintiffs from demanding payment of the original indebtedness immediately after the execution of the bond itself. This is not a sufficient consideration within the authorities. It has been so expressly declared. (Atlantic National Bank v. Franklin, 55 N. Y., 235; Cary v. White, 52 id., 138.)
It appears that the learned judge who presided at the Special Term was asked to make certain findings with reference to the consideration and the character of the agreement, of which the bond of the defendant Bowerman and others was predicated, which he declined to do, and this presents the question discussed for our determination and imposes upon us the duty of reversing the judgment, so far as it affects him individually.
For these reasons I think the judgment appealed from should be affirmed except as to the defendant Bowerman, in regard to whom it should be reversed.
Judgment affirmed.