
    Jacob Klee et al., App’lts, v. Hugh J. Grant, Sheriff, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 6, 1893.)
    
    Replevin — Possession—Goods delivered on memorandum.
    Plaintiffs sent goods to the store of the R’s, “ on memorandum,” that is, to compare with others and for purchase by the R’s, if found satisfactory. They were attached by defendant under process against the R’s. Plaintiff testified that the R’s, had the right to their possession and control until they were demanded. Held, that as, at the time of the seizure, the right of possession was in the R’s, and plaintiffs could not retake them without a demand, they could not maintain replevin.
    Appeal by the plaintiffs from a judgment of the general term of the city court, entered upon the dismissal of the complaint.
    
      Abraham Gruber, for resp’t; Samuel Fleischman, for app’lts.
   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 “ on memorandum,” and 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 of Civil Procedure, § 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 Rothschilds 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 plaintiffs’ 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 their price, of the Rothschilds, and, therefore, under the Code they cannot have replevin.

The legal results of the plaintiffs’ own 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 plaintiffs proved vested the right of possession in the Rothschilds and notin the plaintiffs, when the property was attached.

None 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 their 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 Pryor, JJ., concur. 
      
      Affirming 43 St. Rep., 791.
     