102 N.E. 544 | NY | 1913
As stated in the complaint the Welch Motor Car Company brought an action in July, 1908, against the P. Brady Son Company to recover two automobiles in which action the plaintiff delivered to the sheriff of New York county the affidavit and undertaking required by sections 1694 to 1699 of the Code of Civil Procedure, with a requisition requiring him to replevy the said articles, a copy of which undertaking is attached to the complaint herein. It is further stated in the complaint that thereupon the sheriff did replevy said articles from the possession of the P. Brady Son Company, and delivered the same to the Welch Motor Car Company; that subsequently, on October 28, an order was entered in said action directing that the plaintiff in the present action be made a party defendant thereto; that in pursuance thereof the plaintiff became a party defendant, appeared therein and answered the complaint; that subsequently a judgment was rendered in said action whereby the possession of said chattels was adjudged to the present plaintiff, the sum of $5,924.95 damages was awarded to it against the said Welch Motor Car Company (the plaintiff in the replevin action), and it was further adjudged that the chattels were of the value of $2,500, and that if the same were not returned to the plaintiff herein, the motor car company should pay the plaintiff the sum of $8,424.95; that an execution on said judgment was duly issued and returned unsatisfied, and that neither the said chattels nor any part thereof have ever been returned to the present plaintiff; that before the commencement of the present action the said P. Brady Son Company assigned to this plaintiff its claim on said undertaking.
This action is brought against the defendants upon the undertaking attached to the complaint, which was executed by the defendants and by which they bound themselves jointly and severally to the defendant in the replevin action "in the sum of fourteen thousand four hundred *148 dollars for the prosecution of the action; for the return of the chattels to the defendant, if the possession thereof is adjudged to it, or if the action abates or is discontinued before the chattels are returned to the defendant; and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff."
The sole question presented on this appeal is whether the undertaking given to the defendant in the replevin action, which at the time was the P. Brady Son Company, inures to the benefit of the plaintiff in this action which was subsequently made a party defendant to that action. So far as appears from the allegations of the complaint, there was no privity between the Brady Company and the present plaintiff. It may have been that the claims of the two defendants, the Brady Company and the present plaintiff, were hostile. The object of the action was, and the requisition issued to the sheriff required that officer to take the chattels not from the possession of any one with whom he might find them, but solely from the defendant in that action — the Brady Company. The requisition would not protect him if he took the property from the possession of other persons. (Bullis
v. Montgomery,
For the appellant it is insisted that the undertaking takes the place of the property, and that, therefore, it should inure to the benefit of whoever may be adjudged to be entitled to the possession of the property. This argument would be very forcible if the writ justified the officer in taking the specific chattels named in it wherever he might find them regardless of the person in whose possession they might be. Such was supposed to be the effect of the mandate in a replevin suit at common law, but the Code of Procedure and Code of Civil Procedure eliminated the doubt previously existing on the subject by restricting the authority of the officer to taking the chattels mentioned in the writ only from the possession of the defendant in the action. (Manning, Bowman *149 Co. v. Keenan,
If there were privity of title or possession between the original defendant in the replevin action and the present plaintiff, a very different question would arise. Either a bailor or bailee of property may maintain an action against a trespasser for its conversion, though but one action can be maintained, and a recovery by one party is a bar to an action by the other. (Black on Judgments, sec. 581; Story on Bailments, sec. 94;Smith v. James, 7 Cow. 328; Green v. Clarke,
The order appealed from should be affirmed, with costs, and the questions certified answered in the negative.
GRAY, WILLARD BARTLETT, HISCOCK, CHASE, HOGAN and MILLER, JJ., concur.
Order affirmed, etc. *151