
    Central Stock Yard and Transit Company, Respondent, v. Thomas Mears and Margaret Mears, Appellants.
    
      Salvage on cows rescued from, New YorTc ha/rbor — right of possession in the salvor and in a third person to whom, the cows are delivered to be fed — when a right of possession in a, stranger may be shown.
    
    The master and owner of a steam lighter, who rescues from the waters of the port of New York two cows which were part of the cargo of a vessel belonging to their owner, and which had jumped overboard, is entitled to salvage for his services and may lawfully retain possession of the cows until his claim for compensation is satisfied.
    If the salvor delivers the cows to a third person, to be kept and cared for until his claim for salvage is liquidated, the latter is entitled to assert the existence of the salvor’s lien as a defense to an action brought by the owner of the "cows to replevy them, as, where there is no wrongful taking, but merely wrongful detention, the defendant may defeat the plaintiff’s claim by evidence that title or right of possession is not in the plaintiff, but in a stranger.
    Appeal by the defendants, Thomas Hears and another, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 5th day of May, 1902.
    
      Frank H. Innes, for the appellants.
    
      William J. Powers, for the respondent.
   Hooker, J.:

The plaintiff brought this action in replevin for the recovery of two cows described in the complaint.- The 3d paragraph of the answer alleges that the cows jumped overboard from one of the plaintiff’s boats into the waters of the port of New York, and thereby became derelict and in peril of loss and destruction, and that one Rudolph, the master and owner of the steam lighter Aeronaut, by the tackle of said lighter saved and rescued the cows, carried them to the stable of the defendants where, under an agreement with Rudolph, the defqndants boarded, cared for and kept the cows for him ; that the cows being part of the cargo of the ship of the plaintiff and- rescued as aforesaid from the waters of the port of New York, were subject and liable to condemnation by said Rudolph for his salvage compensation and for expenses of caring for them, and were at the time of the commencement of the action subject to a lien thereon in favor of Rudolph for his salvage compensation and expenses. The plaintiff at the commencement of the trial moved to strike out this paragraph of the answer; this motion seems to have been treated by the parties in the nature of a demurrer to that portion of the answer. The court granted the motion, and after tidal judgment was entered in favor of the plaintiff for the recovery of the possession of the property, and, if possession and recovery could not be had, for its value which was determined.

We think the court erred in striking out this portion of the answer, and in refusing to admit certain proof offered apparently for the purpose of substantiating the allegations referred to.

“ Salvage is the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture.” (The Sabine, 101 U. S. 384.) One who renders voluntary service to rescue a vessel ór property from marine peril, and who is successful in whole or in part, is a salvor, and has a claim which may be enforced by a suit against the ship or its cargo or both. More than that, the salvor is entitled to the possession of the property saved, provided it is such personalty as may be reduced to possession, and has a lien for the salvage compensation until his claim is satisfied. The rule is, we think, correctly stated as follows: The finders of a derelict have the right as salvors to the exclusive possession thereof until their just demands shall be satisfied or until the vessel is taken into the custody of the law, provided other assistance is not necessary to the safety of the derelict.” (24 Am. & Eng. Ency. of Law [2d ed.], 1225, and cases cited.)

Such is the rule in this State as laid down in Baker v. Hoag (7 N. Y. 555). There a canal boat sank in the Hudson river at a point where the tide ebbed and flowed, which the plaintiff located and whose cargo he saved. Without the plaintiff’s consent the defendant, the owner of the cargo, carried it away, and the action was brought in replevin to recover possession. It was there held .that the plaintiff had a lien for salvage on the cargo at the time defendant took it, and by reason thereof there was in him a special prdperty therein sufficient to allow him to maintain his action. The paragraph referred to should have been allowed to remain in defendants’ answer in this case, and the proof to substantiate it admitted, for defendants’ allegation sought to lay 'the foundation for proof that Rudolph had a lien for salvage which was a sufficient special property in the cows to entitle him to their possession until the satisfaction of his claim. If Rudolph, as salvor, was entitled to possession of the cows on account of this lien, or for any other reason, plaintiff’s claim of right of possession was successfully met, and he must have failed in his action. Eor.it is settled that where there is no wrongful taking, but.merely wrongful detention, the defendant is open to defeat plaintiff’s claim by evidence that title or right of possession was not in plaintiff, but in a stranger. (Griffin v. Long Island R. R. Co., 101 N. Y. 348; Siedenbach v. Riley, 111 id. 560.)

The judgment must, therefore, be reversed and a new trial ordered, costs to abide the event.

Baetlett, Hibsohbeeg and Jenks, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  