—My view is that the transactions between plaintiffs and defendant on December 24, 1867, amounted to a mortgage of the wines to secure the payment of the defendant’s note for $615 09 due that day. The plaintiffs’ testimony shows this. The bill of sale conveyed the title in the wine to plaintiffs, but the defeasance is sworn to by Arguimban, one of them, who says, “ I gave him the privilege to get them back in 30 or 40 days, he paying me the money. The note, the original evidence of the debt, was also retained, and payments on it were afterwards received by plaintiffs. These circumstances constituted plaintiffs mortgagees only (31 N. Y. 542; 8 Wend. 375, 392; 8 Johns. 96; 7 Cow. 290).
The defendant was a mortgagor in possession. The storage receipts he gave amounted to no more than the usual covenant in mortgages, that until default the goods were to remain .with the mortgagor.
The defendant did not pay the note in 30 or 40 days, and the plaintiffs became entitled to take the goods as mortgagors. The defendant paid $50 about a month after default, and another $50 about three months after default. These payments reduced the mortgaged debt, but did not extend the time nor waive the default (Charter v. Stevens, 3 Den. 33).
The plaintiffs had the right to take the goods when they made the demand, nearly six months after the last payment, and if they were refused, had the right to recover them or to sue as for a conversion. But even if they were delivered, the defendant would have had the right to redeem them before sale *83by tendering the balance due on the debt (Story on Bailm. § 287); and when sued for the property or the conversion, he has a right to mitigate the plaintiffs’ recovery by reducing it to the amount actually due upon the mortgage (Hinman v. Judson, 13 Barb. 629).
This rule should have been applied on the trial of this action. The defendant asked it and the judge refused. The plaintiffs are entitled to judgment for $615 09, with interest from December 24, 1867, less $50, with interest from March 27, 1868, and $50, with interest from May 23,1868. If the plaintiffs consent to such modification, they may enter judgment therefor; if not, a new trial should be ordered.
The defendant is entitled to costs of this appeal.
Judgment for the amount of the verdict.