
    Singer Manuf'g Co. v. Hill.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1891.)
    Seneca Indians—Actions against—Contracts.
    Replevin to recover a sewing-machine in possession of defendant, a Seneca Indian, under an agreement that she (defendant) would pay hire for the machine monthly, and, in default of so doing, surrender it to plaintiff, and allow its agent to enter her house for the purpose of reclaiming it, and that she should oWn it when the sums paid for hire or otherwise amounted to §50, is not an action “on contract, ” within the meaning of Laws Ñ. Y. 1813, c. 92, § 2, providing that no person shall sue a Seneca Indian “ on any bond, bill, note, promise, or other contract, ” since the agreement does not give the right of action, though it does determine the right to the possession. Distinguishing’Hastings v. Farmer, 4 N. T. 293.
    Appeal from Cattaraugus county court.
    Replevin by the Singer Manufacturing Company against Mary Hill to recover a sewing-machine. From a judgment of the county court affirming a judgment of a justice of the peace in lavor of plaintiff, defendant appeals.
    Argued before,Dwight, P. J., and Macomber, J.
    
      A. Hazeltine, for appellant. G. W. Cole, for respondent.
   Dwight, P. J.

The action was replevin for a sewing-machine. The defendant is a woman of the Seneca Nation of Indians. By chapter 92 of the Laws of 1813, (2 Rev. Laws, 153,) § 2, it is provided “ that no person shall sue or maintain any action on any bond, bill, note, promise, or other contract hereafter to be made against any "of the Indians * * of the Seneca Tribe or Ration, * * * and every person who shall sue or prosecute any such action against any such Indians shall be liable to pay treble costs to the party aggrieved.” The defendant was in possession of the sewing-machine under an agreement with the plaintiff, witnessed by a writing signed by the defendant dated December 20, 1881, and denominated a “lease,” which certified that she had leased the machine of the plaintiff for the term of 14 months, and that for the use of it she agreed to pay the sum of $50, in sums specified, payable monthly, commencing with the date of the agreement. The lease contained stipulations as to the disposition, use, and care of the machine during the said term, and continued as follows: “And if any default should be made in the payment of the rent, or any part thereof, as above provided, or if I shall violate any of the provisions of this agreement, then, and in either case, on demand, I agree to pay the said Singer Manufacturing Co., their agent or assigns, the full original price of said machine, less the sum or sums that shall actually have been paid for the hire of the same; and it is further agreed that, in case I fail to pay as last aforesaid, or fail to pay the rents as above stipulated, or any part thereof, or shall violate any of the provisions of this agreement, they, the said Singer Manufacturing Co., at their election, may take said machine; and I hereby agree to surrender and deliver the same, with all its accompaniments, to them, or their authorized agent, without let or hindrance, and do authorize them to enter my dwelling, building, or place of business for the purpose of reclaiming the same. It is further agreed that, as soon as the Singer Manufacturing Co. shall have received the sum of $50 for the said rent or otherwise, for the said machine, the full title and ownership thereof shall pass from the said the Singer Manufacturing Co. to me, and not before.” Below the date and the signature of the defendant was the following: “This certifies that I know and fully understand the provisions of the above lease. [Signed] Maby Hill.” The defendant had had possession of the machine nearly eight years, and had paid under the contract less than $35, when the plaintiff demanded the balance of the money due, which the defendant declared herself unable to pay. ' The plaintiff then demanded possession of the machine, which the defendant refused to give, unless she was repaid the money already paid by her; and the plaintiff thereupon commenced this action of replevin, and took the machine under process issued therein. The sole question in the case is whether that action was an action “on contract,” within the meaning of the statute quoted above.

Whether the agreement under which the defendant took possession of the machine was a lease or a conditional sale, or both, it is plain that the title to the property was all the time in the plaintiff. Prom the moment of the demand and refusal to deliver the machine, the possession of the defendant was wrongful. The plaintiff’s cause of action in replevin was based upon that demand arid refusal. Although, the contract between the parties determined the right of the plaintiff to the possession of the property, yet the right of action in replevin was not given, by the contract, but arose only upon the wrongful refusal of the defendant to deliver the property on demand. The action of replevin is not an action on contract, but is one sounding in tort. If a Seneca Indian hired a horse for a day or for a week, and then refused to return him to the owner, there would be no question of the right of the latter to maintain replevin for his horse, even though the Indian' acquired possession under a contract, and the right of the owner to the possession depended upon the term of the hiring, which was fixed by the same contract. The case of Hastings v. Farmer, 4 N. Y. 293, is not at all in point. Hastings had bought a pair of horses at a sale on an execution issued upon a judgment recovered by default, against an Indian, in an action on contract. The Indian took his horses where Hastings could not find them, and Hastings brought replevin to recover possession of the property. The court held that the judgment, the execution, and the sale were absolutely void, and that the plaintiff acquired no title by his purchase. He was not defeated because his action was on contract, but because the action in which the judgment was recovered under which he claimed title was on contract, and therefore that judgment was void. The judgment in this case must*be affirmed.

Judgment of the county court of Cattaraugus county affirmed, with costs.  