Pelham Hod Elevating Co. v. Baggaley — 34 N.Y. St. Rep. 691

Majority

p. 691

The Pelham Hod Elevating Company, App’lt, v. Joshua Baggaley, Resp’t.

(City Court of New York,

General Term,

Filed December 26, 1890.)

Headnote

Replevin—Interpleader not proper where property not reclaimed.

In an action of replevin the property was taken by the sheriff and not reclaimed by defendant. Thereafter, - on motion of defendant, an order was granted substituting one K. as defendant on the ground that he claimed title to the property, and directing its delivery to him to hold subject to the order of the court. Held, error: that defendant was not entitled to the order because he could not tender into - court the property claimed; that plaintiff became entitled to possession, and the court could make no different direction concerning it.

The action, in form for replevin, was begun October 27,1890, to recover an engine and boiler valued at $400, and $100 damages for the detention thereof. The property was taken into the custody of the sheriff on that day. The defendant failed to counter bond, and no claim was made to the property by any third person in the manner prescribed by the Code. § 1709. On November 13, 1890, the defendant applied for an order substituting one Frank W. Keys, receiver, etc., as defendant, in place of the defendant, on the ground that Keys claimed title to the property. The application was granted, and the defendant was directed to deliver the property to Mr. Keys, the receiver, who was to hold it subject to the further order and direction of the court From this order the plaintiff appeals.

J. M Bustis, for app’lt; Smith, Bowman & Close, for def’t; Levein, <6 Johnson, for Keys.

—The Code has provided a special procedure by which a defendant against whom replevin is instituted may retain the property claimed, § 1704, and by which a third person, not a party, may obtain possession of the same under claim of title. Sec. 1709. Neither of these methods were resorted to in the present instance, and the plaintiff became entitled to receive and hold possession of the property until the final determination of the action. The defendant was not entitled to an order of interpleader under § 820 of the Code, because he did not tender into court the property claimed. Indeed, he had lost the right of possession, and could not deliver the property.- The plaintiff became

p. 692

entitled to possession under the provisions of the Code, and the court could make no different direction concerning it. This view is in accord with the authorities. Edgerton v. Ross, 6 Abb. Pr., 189 ; Vosburg v. Huntington, 15 id., 254 ; Lynch v. St. John, 56 How. Pr., 144 . Section 820 of the Code must be construed in harmony with the other sections cited, so that all may have effect, without infringing'upon or impairing the purpose of either.

It follows that the order appealed from must be reversed, with, costs.

Ehrlich and Yan Wtck, JJ., concur.