
    SUPREME COURT.
    Jerome Paddock agt. Frederick H. Wing.
    In an action for taking and converting personal property from the possession of the plaintiff, the defendant alleging- that it was taken on execution in his favor by the sheriff; as the property of the defendant in the execution, the defendant on the trial cannot under the Code introduce the evidence of a witness to show that the property never belonged to the plaintiff, but that the witness was the owner of it, for the purpose of showing that the plaintiff is not the real parly in interest. The plaintiff has an interest in and right to protect his possession.
    
    
      Heard at Orleans, September General Term, 1858.
    
      Decided at Erie,
    
    
      November General Term, 1858.
    Grover, P. J., Green, Marvin and Davis, Justices.
    
    Motion for new trial upon exceptions.
    The complaint charged the defendant with taking and converting to his own use a large number of books, thetoroperiyof the plaintiff. The answer was, first a general denial. 2d. It alleged that the title to the property was in one Tyrrell, and that the sheriff took the property by virtue of an execution against Tyrrell, issued upon a judgment in favor of the defendant.
    On the trial, the plaintiff gave evidence tending to show that the property belonged to him and was in his possession at the time it was taken by the sheriff and sold to the defendant, under and by virtue of the judgment and execution against Tyrrell.
    The defendant offered to prove by one Danforth, that the property was not and never had been the property of the plaintiff, but that it was the property of Danforth. The defendant’s counsel stated that he did not expect to connect the taking of the property in any manner with the title of Danforth, so as to justify the taking by any authority or permission of Danforth, but he claimed the right to give the evidence for the purpose of showing that the plaintiff was not the party in interest in this action.
    The judge upon objection rejected the evidence, and the defendant excepted. There was a verdict for the plaintiff, and an order that the exceptions be first heard at general term.
    De Puy & Bowen, for plaintiff.
    
    M. A. Whitney, for defendant.
    
   By the court—Marvin, Justice.

Prior to the Code, the evidence offered by the defendant would not have been received, and this was conceded upon the argument. The plaintiff was in possession of the property, claiming to be the owner, at the time it was taken and converted, and such possession gave him an interest sufficient to maintain an action against a stranger or naked wrongdoer, or against any one converting "the property, except the owner or one who had a right to the possession. (Bouvier, Action at Law, 430, et seq; Duncan agt. Spear, 11 W. 53 ; McLaughlin agt. Waite, 9 Cow. 670; 2 Green. Ev. § 437; 2 Saund. 47 a, note 1.)

The defendant claims that the Code (§ 111) has changed the law. By that section, every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113. In my opinion the Code has not affected the question we are considering. .The plaintiff was “the real party in interest.” He had an interest in protecting his possession, assuming that the property was not his, that is, that he was not the owner, but that it had been and was the property of Danforth. For aught that appears in the offered evidence, the plaintiff was the bailee of Danforth, and if so, it was his duty to protect the property, and the action could be maintained by him or by Danforth, the general owner. (Story on Bail. § 94.)

The question presented in this case, was in the case of Card agt. Cheeny, decided some years since by the court at general term in this district. The like evidence was offered and rejected, and there was an exception. We held that the evidence was properly rejected.

There must be judgment for the plaintiff upon the verdict.  