The facts found by the trial court are supported by the evidence, and they justify the conclusion that the plaintiff was entitled to maintain his action to redeem. His right under the mortgage was that of redemption from the sale, by payment of the amount secured by it. When this right at law of a mortgagor is terminated, there remains in him an equity of redemption, by the recognition of which the courts may afford him relief, until it is extinguished by sale by virtue of the mortgage. The evidence was sufficient to support the plaintiff’s title as found by the court. And while there is some conflict of evidence in respect to the manner that the tender and offer of payment were made, it permitted the conclusion of the court that the plaintiff had tendered, and offered to pay a sum somewhat exceeding the amount of the six unpaid notes. And the fact, that the notes were negotiable and then not due, justified the plaintiff in requiring that they be delivered up as a condition of parting with the money so tendered.
In view of these facts, and as they were found by the court, the taking of the landau by the defendant, transporting it to Albany, and there proceeding to sell it under the mortgage, seems to have been an unreasonable exercise of power, and without the observance of the rights of the plaintiff, to such extent as to justify the court in charging the defendant with costs.
The question of the measure and amount of damages, presented by the exception taken to the conclusion of the court in that respect requires some consideration. The plaintiff proved that the value of the use of the carriage was three dollars per day, and the court allowed as damages one dollar per day up to the time of the decision. There are no special circumstances appearing to take this case out of the ordinary rule applicable to the measure and allowance of damages arising out of the taking and appropriation of personal property, which has a value in its use, nor does it appear that the plamtiff was unable to go into the market and purchase another carriage of like character. Assuming that its place could reasonably have been supplied by another, the value of the use as damages in this case should, we think, have been limited to a reasonable time, within which to do that, after the sale of the carriage was made by the defendant.
*519In an action for redemption of property, real or personal,, the-plaintiff may recover the rents and profits of the property, or, what is the same thing, for the nse of it during the time he is deprived of such use, but this is because he recovers the property itself, and if personal property it may then be depreciated in value. But here the recovery is not of the property, or of its value at the time of the trial or judgment. The plaintiff recovers the value as of the time it was taken from the possession of the plaintiff. In an action where the plaintiff recovers the value of property as of the time of the trial, or when hy the judgment he may be required to take the property, the reason applies which may enable him to recover as damages, the value of the use of which he has been by the defendant deprived, when there is a value in its use.
Such is the nature of actions to recover the possession of personal property, and such there may be the rule of damages, because the' party recovering may be required to take the return of the property, and the value of it is assessed as of the time of the trial,, and any' depreciation in value or loss occasioned by deprivation, is measured by the damages allowed and recovered. (Brewster v. Silliman, 38 N. Y, 423; Allen v. Fox, 51 id , 562; N. Y. G. & I Co. v. Flynn. 55 id., 653.)
Although there may be circumstances which will permit the recovery of special- damages- of th'c character of those awarded in this instance, not within' the'rule before stated, none appear by the' evidence here to- justify it beyond those before suggested, and interest upon the value of the property, from, and after such reasonable time within which the plaintiff might recover the value of the use of it. The value of personal property is ordinarily depreciated by use, and when the value, as of the time it is taken from the party entitled to it, is adopted as the measure of recovery in that respect, it would seem to be difficult by any well defined rule to apportion the value of the use, and the amount of the concurrent depreciation in value, so as to produce a residue for the use. There is no evidence appearing in this case to furnish any aid in that direction. As a general rule when the measure of damages for the taking and appropriation of property, is the value at the time of the taking, such value and interest upon it constitute the extent of the recovery. And this case, as presented by the evidence, *520does not require here any particular reference to the exceptions to such rule. ,
The defendant, by the answer, alleges that after the landau was taken to Albany, a warrant of attachment was issued in an action brought by the defendant against the plaintiff, and levied upon the carriage by the sheriff of Albany county ; that at the time of the sale of it upon the mortgage the sheriff was present, and demanded the payment to him of the surplus of the proceeds of the sale remaining after satisfying the mortgage and the expenses thereon; that such surplus was paid to the sheriff, and that judgment was recovered in that action, and execution to him issued, upon which he applied the amount so received by him.
The defendant offered the warrant of attachment, judgment-roll, etc., in that action in evidence; they were excluded and exception taken. The defendant’s counsel contends that the rejection of this evidence was error. The legal title to the property at the time of the alleged levy of the attachment was in the party plaintiff in that action, while the right of the defendant there and plaintiff here was in the equity of redemption only. This equitable interest was not reached by the levy of the attachment in the manner in which it was alleged to have been made. The levy alleged -was made as upon property of a debtor capable of manual delivery, which embraces that only of which he has, in whole or in part, the legal title. (Code Civil Pro., §§ 644, 649.)
The right of the plaintiff at that time was one in action, and dependent on its declaration in his behalf by the court, and it then had no existing tangible quality subject to levy by attachment, and the officer thus seeking to make the levy acquired no lien which he could enforce by action. (Mattison v. Baucus, 1 N. Y., 295; Thurber v. Blanck, 50 id., 80; Anthony v. Wood, 96 id., 180; Lawrence v. Bank, of the Republic, 35 id., 320.) This action was brought and the recovery had upon the theory that the defendant had no right to extinguish by sale of the property the equity of redemption of the plaintiff, and such was the effect of the judgment. It would seem to follow that the defendant could not through the sale produce a surplus of proceeds, or any proceeds for the plaintiff, subject as such, to application by means of the process of attachment and of execution upon the judgment which the defendant recovered *521against the plaintiff. (Thurber v. Blanck, 50 N. Y., 80.) The evidence so offered was, therefore, wholly immaterial in this action, and its exclusion was not error. No other question requires the expression of consideration, and none of the exceptions, other than that relating to the damages, seem to have been well taken. ,
The judgment should be reversed and si new trial granted, costs to abide the event, unless the plaintiff stipulate to reduce the recovery, exclusive of costs, to $641.90, and interest thereon from the 30th day of July, 1885, and in that event, the judgment must be so modified, and as so modified affirmed, without costs of this appeal to either party.
Smith, P. J., Barker and Haight, JJ., concurred.So ordered.