
    Klee v. Grant.
    (New York Common Pleas
    General Term,
    February, 1893.)
    Plaintiffs replevined from the defendant, a sheriff, goods which the latter attached, under process, against R. and others. Plaintiffs claimed that the goods were attached in R.’s store, whither they had been sent by plaintiffs, “on memorandum,” and at the time of the sei-zure by the sheriff, plaintiffs had the right to the immediate possession thereof. On the trial, it appeared that a clerk of R. came to the plaintiffs to select goods to be sent to R.’s store to compare with other goods, and if found of use, they would buy them; plaintiff testified that R. was absolutely entitled to their possession and control until they were demanded. The goods were never demanded except from the sheriff, after he had attached them. Plaintiff was nonsuited. Held, proper; that at the time the property was attached, the right of possession was vested in R. and not in plaintiffs.
    Also held, that if R. was to be considered as bailee of the plaintiffs, his possession was not the possession of the latter, but was under a contract by which he had the right to retain the goods, upon paying the price, and his right to possession continued until he had refused to pay therefor, or to return the goods upon demand. 1
    Appeal by the plaintiffs from a judgment of the General Term of the City Court, entered upon the dismissal of the complaint. The opinion states the case.
    
      Abrahcum Gruber, for defendant (respondent).
    
      Samuel Fleisehman, for plaintiffs (appellants).
   Daly, Ch. J.

The plaintiffs seek by this action of replevin to take from the sheriff goods which the latter attached under process against Rothschild and others. The goods were attached in the Rothschild store, whither they had been sent by plaintiffs, ce on memorandumand the question in this case is whether plaintiffs had the right to the immediate possession of the goods at the time of the seizure by the sheriff, for the Code prescribes that replevin may not be maintained for a chattel seized by virtue of a warrant of attachment against the property of a person other than the plaintiff, if, at the time of the seizure, the plaintiff had not the right to reduce it into his possession. Code Civ. Proc. § 1690, subd. 3.

Taking the testimony on the part of the plaintiffs in the aspect most favorable to them, it appears that a clerk or buyer of the Rothcliilds came to the plaintiffs to select goods to be sent to his store to compare with other goods, and if he found he could use them he would buy them; and that as plaintiff Bernard Klee swears, Rothschild was absolutely entitled to their possession and control until they were demanded. The goods were never demanded except from the sheriff after he had attached them. It, therefore, appears from the plaintiff’s own testimony that the transactions between them and the Rothschilds gave the latter the right to possession at the time of the sheriff’s seizure, for the plaintiffs could not retake the goods until they had made a demand of them, or then- price, of the Rothschilds, and, therefore, under the Code they cannot have replevin.

The legal results of the plaintiffs’ owm statement make it unnecessary to discuss the question whether there was not an actual sale by them to the Rothschilds of the property in question. Had the case turned upon the answer to that question, the evidence should have been submitted to the jury; but it matters not what was the real transaction, for that which the plaintiff proved vested the right of possession in the Rothschilds and not in the plaintiffs when the property was attached.

Hone of the authorities cited by the plaintiffs as to the possession by bailees, trustees, agents, factors and mortgagees, sustain their contention that a demand was unnecessary before they could repossess themselves of the goods they had delivered to the Rothschilds with the right, as their evidence shows, to absolute possession and control. If the Rothschilds were to be considered as bailees of the plaintiffs, their possession was not the possession of the latter, but was under a contract by which they had the right to retain the goods upon paying the price; and then* right to possession continued until they had refused to pay the price or to return the goods upon .demand.

The judgment should be affirmed, with costs.

Bischoff and Pbyob, JJ., concur.

Judgment affirmed.  