The' sole question to be determined is whether the taking of the property by the marshal in replevin at the suit of the defendant, the vendor, on the tenth day of December, 1907, was a taking by the vendor within the meaning of section 116 of the Lien Law. If it was, it clearly establishes the plaintiff’s right to recover the amount
The taking by the marshal was not a taking by the defendant. The marshal was an officer of the court executing a writ issued out of the court. His taking placed the property in custodia, legis, and not in the custody of the vendor, who had given a bond for the return of the property in the event of a judgment against him. Milliken v. Selye, 6 Hill, 623; First National Bank of Oswego v. Dunn, 97 N. Y. 149; Hagan v. Lucas, 10 Pet. 404; Commerce Ex. Nat. Bank v. Blye, 123 N. Y. 132; McCarthy v. Ackerman, 154 id. 565. In Roach v. Curtis, 191 N. Y. 387, relied upon by the respondent, the vendors had sued in replevin and “ had obtained possession of the property by virtue of the execution issued on the judgment in the replevin suit,” and they then retained such possession beyond the time limited. In the case at bar the taking by the marshal was merely to hold the property pending the final judgment determining the rights of the parties and the defendant’s possession dated from that time. The vendor could not sell and deliver pending such custody. It was only when the judgment of the court established its title to the property that defendant’s possession began, and the sale on the first day of April, 1908, after due notice, was a compliance with the provisions of the statute.
Giegerich and Ford, JJ., concur.
Judgment reversed and complaint dismissed, with costs.