
    Atlantic Realty Company, Plaintiff, v. Joseph Wlodar and Others, Defendants. In the Matter of the Application of Harry Tobenkin, Appellant, for Leave to Sue Edward D. O’Brien, as Receiver of the Mortgaged Premises in the Above Entitled Action, Respondent.
    First Department,
    June 7, 1907.
    Conditional sale of fixtures to mortgagor — replevin when foreclosure on premises pending.
    One who has sold fixtures to a mortgagor under a conditional contract, whereby" the title remains'in the seller until'the goods are paid for, is entitled to maintain an action of replevin, on default by the buyer, although a mortgage upon the premises containing the fixtures is being' foreclosed in an action to which the seller is .not made a party and a receiver of the rents and profits is in possession. 'tinder the circumstances an order limiting the seller to an action in. ‘ equity and staying his; proceedings in the action of replevin is without authority. '
    ■ Appeal by Harry Tobenltin from an order of the: Supreme Court,, made at the New York Special Term and entered in the office :of the clerk of the county of New York on -the 29tli day of April, 1907, resettling a' prior order which modified hn order entered in •said clerk’s office on the 20'th day of March, 1907,; permitting the. appelant.to sue the respondent and which stayed proceedings in . réplevin. and restricted the said appellant to an action in equity.
    ' J. A.¡ Seidmtm, for the-appellant.
    
      T: O. Vcm der Yeer ol counsel {O'Brien da.Sanford>attorneys^ for the respondent.- ■ L ' ' . ''
   Per Curiam :

On the 30th day of Hovember, 1906, in an action brought by the Atlantic'Realty Company against Joseph Wlódar and others for-the foreclosure of a mortgage on certain premises located at. the intersection of Audubon avepue and One Hundred and Eightieth street, in the city of New York, Edward D. O’Brien was appointed receiver, for the benefit of the plaintiff, of the rents and protits of tiie said mortgaged premises and to retain the same until the sale of the premises under the judgment to be entered in the action, and then, after deducting his proper fees and disbursements, to apply , the said moneys to the payment of any deficiencies there might be • directed to be paid to the plaintiff in and by said judgment, and in case there were no deficiencies that he retain the money'in his hands until the further order of the court in the premises.

It appeared that the United States Gas Fixture Company had delivered to the owner of the property, Joseph Wlodar, certain gas and electric fixtures and chandeliers under a conditional contract for the sale thereof, whereby title to said fixtures was to remain in the said United States Gas Fixture Company until paid for, and that the amount due thereon was $762.

The gas fixture company, after certain negotiations by which it sought to obtain payment for the said articles delivered to the building, informed the receiver that an action would be commenced to replevin said fixtures unless some arrangement could be made for a settlement, and to this, the receiver replied that he could not pay any money without an order of the court and that tlie gas fixture company, if it so desired, would have to commence an action in replevin, and stated that it might be well to make him a party to the proceeding. Thereafter the United States .Gas Fixture Company assigned its cause of action to the appellant Tobeukin, who obtained an ex parte order from the Special Term of the Supreme Court allowing said Tobenkin to sue said O’Brien as receiver. Thereafter an action in replevin was instituted in the City Court of New York in which action the receiver appeared and interposed an answer. On the eighteenth day of April, upon the application of the respondent, the Special Term of the Supreme Court, made an ' order which provided that the previous order of the Special Term giving the appellant leave to sue be modified so as to limit the permission therein given to bring an action, against said receiver to a proper action in equity, stayed the proceedings in the action in replevin brought in the City Court, directed the sheriff not to exe-: cute any. writ of replevin in said action and to return to the possession of said receiver any property which he might have taken from his possession by virtue of any such writ and ordered that the . appellant pay said sheriff his proper fees due him by reason of the issuance, of the writ against the receiver, from which'order this ' appeal is taken. ' .

The United States Gas Fixture Company was not made a party to the action in foreclosure. Its claim to the possession of the personal property was based upon the fact that notwithstanding its delivery, u'nder the conditional contract of sale, it continued vested with the -title to said property until paid therefor. This is the claim assigned to the appellant. '

. "We know of no action in equity which the said United States Gas Fixture Company or its assignee, under the facts disclosed by these papers, could institute. The issues involved can be, properly disposed of in the replevin action. ■ . '

- The order limiting the leave to sue and staying proceedings was clearly erroneous and, therefore, should he reversed, with ten dollars- costs and disbursements to the appellant, and the motion denied, ' with ten dollars costs.

Present — Ihgraham, Laughlih, Clarke, Scott and Lambert, JJ.

Order reversed, witli, ten, ■ dollars costs and disbursements*, and motion, denied, with ten dollars coSts. • ’  