
    Bernhard N. Reimers, Appellant, v. Christina Schmitt, Respondent.
    
      Party—substitution, in an action of replevin against one as an individual, of such defendant as administratrix, and, of the next of kin, of a decedent.
    
    In an action of replevin, brought against the defendant individually to recover possession of a diamond stud, the stud was replevied by the plaintiff and was thereafter reclaimed by the defendant. On a motion made by the defendant for an order substituting herself in her capacity as administratrix, and others who, together with such administratrix, constituted all of the next of kin of Frederick J. Weiner, in place of herself individually, the plaintiff submitted an affidavit alleging that the stud was givpn to him by one Frederick J. Welner, now deceased, during his lifetime; that after the death of said Weiner the defendant was appointed his administratrix and that she took advantage of the plaintiff’s ignorance of the law to induce him to surrender the stud to her.
    The defendant submitted an affidavit in .which she asserted that she made no claim individually to the stud; that she held it as administratrix only and claimed it in that capacity; that the next of kin of Frederick J. Weiner had notified her that they would hold her personalty responsible if she delivered the property to the plaintiff. ■
    
      Held, that it was improper to grant an order directing the defendant as administratrix, and the next of kin, other than the defendant, individually, to be substituted as defendants in the place and stead of the defendant.
    Appeal by the plaintiff, Bernhard FT. Reimers, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of May, 1901, interpleading and substituting Christina Schmitt, as administratrix, etc., of Frederick J. Weiner, deceased, and others, certain of the next of kin of Frederick J. Weiner, deceased, as defendants, in place and instead of Christina Schmitt, individually.
    
      I. Henry Harris, for the appellant.
    
      T. Ellett HodgsMn, for the respondent.
   Hirschberg, J.:

This is an action in replevin by which the plaintiff seeks to recover from the defendant, individually, the possession of a diamond stud. The complaint is verified and alleges that the defendant wrongfully took the stud from, the plaintiff on or about the 16tli day of April, 1901. The plaintiff alleges in his affidavit, filed in opposition to the motion for substitution herein, that the stud was given to him by one Frank J. Weiner, now deceased, during his lifetime ; that after the death of said Weiner the defendant was appointed his administratrix, and that she and her husband, .who is a lawyer, took advantage of the plaintiff's ignorance of the law with reference to estates to persuade and induce him to give up the stud to her, notwithstanding it had been given to him in his lifetime by the deceased. Hone of these allegations is denied.

The summons and complaint were served on May 3, 1901, and the stud was replevied by the plaintiff with the affidavit, undertaking and requisition required by law, and' thereafter the defendant reclaimed the property by the giving of the notice, affidavit and undertaking required by the Code of Civil Procedure, and the same was delivered to her and was in her possession at the time the motion was made. ' ;

The defendant in the affidavit on which the motion was based asserts that she makes no claim individually to the stud, but that she holds it as administratrix only, and claims it only in that. capacity; that the next of kin of Frank* J. Weiner, viz., his mother, brother and two sisters, have notified her (she also being one of the next of kin, a sister) that they will hold her personally responsible if she delivers the property to the plaintiff, and that the claims of the persons who are entitléd to the assets of the estate of the deceased have been made without collusion.

The order appealed from directs that the defendant, as administratrix, and the remaining next of. kin, individually, be substituted as defendants' in the action in the place and stead of the defendant, individually:

I know of no authority for the order and none is cited by the respondent. The plaintiff has a good cause of action against the-defendant if it be true that she has converted his property, and the court cannot deprive him of the right to maintain it by ordering him to substitute in her place defendants against "whom he has no-claim. There is no provision of the Code authorizing the substitu,. tian of defendants under such circumstances. There is provision: for the claim of a chattel in replevin by third parties (Code Civ.. Proe. § 1709), but such claim must be against the defendant and must be made before the chattel is actually delivered to either party. Manifestly that provision has no application to the case. Neither has section 452 of the Code any application. The controversy between the parties can be completely determined without the intervention of others. The defendant as administratrix would not be a proper party defendant, and consequently the next of kin whom she represents are not.

It must be assumed that the. plaintiff’s statement as to the manner in which the defendant acquired possession of the stud is true. There is no answer to the complaint and no denial of its allegations. That the defendant is solely liable individually if any liability exists was decided by the Court of Appeals in the case of Matter of Van Slooten v. Dodge (145 N. Y. 327). There it was held that an executor of an estate could not subject it to a new liability, either by his contracts or by his wrongful acts, and that accordingly where one to whom a diamond ring had been given by the deceased in his lifetime was induced by the executor to deliver it to him, the executor personally was solely liable and not the estate. Whether possession was obtained as the claimant asserted for the mere purpose of inspection, or as claimed by the executor so that he might inventory the ring among the assets, the court said (p. 330) was “ not very material.” In either event, I infer, if a recovery could be had at all in any form of action it would be against the executor individually. The court said (p. 331): If this ring belonged to the claimant by gift from the testator in his lifetime, its subsequent taking by Wheeler, who was his executor, could not create a claim against the deceased. The claimant never had any claim against the deceased, and when Wheeler took it, lie did so as the individual and, as the individual, could be made responsible in a proper proceeding for the consequences of his act.” And at page 332 : “ An executor cannot subject the estate in his hands for administration to some new liability, either by his contract, or by his. wrongful act. In the present case, whatever claim this claimant had, because of the taking of the ring from her possession by Mr. Wheeler, was against him individually and in no sense against him in his executorial capacity.”

The defendant in this case may of course upon the trial entirely defeat the plaintiff’s claim. But a plaintiff is entitled to conduct even a losing law suit. The effect of the order is to compel him to release the only responsible - party who can by any possibility be liable to him, the only one -who has possession of the property which he seeks to obtain, and to substitute in her place individuals who neither have nor claim under the forms of law any legal right to’ 'the possession of the property and against whom he has no cause of action whatever.

The order should be reversed, ■ with ten dollars costs and disbursements, and the motion denied, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs. ’ 
      
       Sic.
     