
    Mary A. Kauffman, Respondent, v. Michael Klang et al., Appellant.
    (Supreme Court, Appellate Term,
    March, 1896.)
    1. Conditional- sales — Failure to file agreement — Pledgee.
    A conditional sale agreement, although not filed, is valid as against one to whom the vendee has pledged the goods; a pledgee not being a purchaser or. mortgagee within the.meaning of the statute.
    2.. Pledge — Title.
    An unauthorized pledge to one having no notice that another is the true owner vests no title in the pledgee.
    3. Replevin — Demand — Waiver.
    An objection that no demand for the goods has been shown is waived unless taken on the trial.
    Appeal by defendants from judgment of the Seventh Judicial District Court.
    [William N. Loew, for appellants.
    Saul Bernstein, for respondent.
   McAdam, J.

The action was in replevin to recover possession of a watch and chain, the property of the- plaintiff, wrongfully detained from her by the defendants under the following circumstances:

On March 15, 1895, the defendant Klang obtained possession, of the property from the plaintiff under an agreement in writing signed by him, whereby he certified that he had rented and leased from the plaintiff the property in question, for which he agreed to pay $96 as follows: Twenty dollars on delivery, and. the further sum of two dollars on each arid every Thursday of every week thereafter until said sum of $96 was. fully paid, when the plaintiff should deliver to him a toll of sale of the property without further consideration. Klang agreed to safely keep in his possession the said property in trust for the plaintiff, and it was understood that title thereto should not pass until all of the payments were fully made.

It was further provided that in case of default in any one or more of the payments Bang should surrender the property to the plaintiff in good condition, and permit her to keep and retain all moneys. theretofore paid thereon. .

It was also agreed that before obtaining a bill of sale of the property Bang should not deliver it to any person without first receiving in writing the consent of the owner.

Bang, paid the $20 mentioned in the agreement, and on the following day pledged the property with his codefendants, H. &' S. Freund, pawnbrokers, obtaining thereon the sum of $40.

The action was commenced May 7, 1895, and was tried on a ■ stipulation by which the facts hereinbefore stated were admitted. It was also agreed that Bang violated the conditions of the agreement by pledging the property, and that H. & S. Freund did not know at the time they advanced1 the $40 of the existence of the agreeirient before referred to.

It is urged on behalf of the appellants Freund that the agreement by which Bang obtained possession of the property constituted a, conditional sale, and as no copy thereof had been filéd, as required by chapter 315 of the Laws of 1884 and the acts amendatory thereof, the same is not operative as to them. The statute provides that conditional sale agreements unless filed shall be void as against subsequent “ purchasers or-mortgagees in good faith, and it is clear that pledgees are neither. LaFetra v. Glover, 10 Misc. Rep. 70; 63 N. Y. St. Repr. 264; Canton Co. v. Webb, 42 id: 187; 16 N. Y. Supp. 932. So that there is nothing in the act relied upon that has any relevancy to this- case.

Bang had no title whatever, and could not, therefore, pledge the property, .and the fact that his codefendants in good-faith advanced $40 upon it gives them no greater right than the pledgor himself had. He had a mere naked possession. This has never been held to confer a power of disposition, and an unauthorized pledge to one- having .no notice- that another is the true owner •vests no title in the pledgee. LaFetra v. Glover, supra; Smith v. Clews,, 114 N. Y. 190; Heilbronn v. McAleenan, 16 N. Y. St. Repr. 957; Anderson v. McAleenan 29 id. 406.

The plaintiff did not furnish the defendant with any indicia of title, and she is in no manner estopped frpm asserting her rights. The pledgee must necessarily rely upon the pledgor’s warranty of title, and if title prove- defective his, remedy is against the pledgor.

Appellants contend that no demand has been proved. Assuming a demand to have been necessary, it was waived by the failure of the defendants to move at the trial for a dismissal of the complaint upon that ground. A defect in the plaintiff’s case should be pointed out so that he may supply it if he can. Gerding v. Haskin, 141 N. Y. 520; Booth v. Bunce, 31 id. 246; Binsse v. Wood, 37 id. 526; Thayer v. Marsh, 75 id. 340; Sterrett v. Bank, 122 id. 659; Quinlan v. Welch, 141 id. 158. The objection would probably have been obviated if it had been made in time.

The judgment must be affirmed; with costs.

Daly, P. J., and Bischoee, J., concur.

Judgment affirmed, with costs.  