
    THE NEW YORK AND HARLEM RAILROAD COMPANY, Respondent, v. GEORGE HAWS, Appellant, and PETER MALADY, Respondent.
    The finder of lost money or property has the right to its custody, and his claim or title to the property is good against the world, except the real owner, who lost the same.
    The fact of a person finding property lost or abandoned, is sufiicient to give him a right of action against any person who seeks to deprive him'of its possession. In McLaughlin «. Waite (5 Wend. 405), a distinction is made between articles found that had/been secreted in the earth, and such as are found upon its surface. ‘'In the case of the latter, the chancellor says, that if no owner appears to claim them, it may be presumed that they have been intentionally abandoned by the former proprietor, and consequently belong absolutely to the finder.
    Such right is not affected by the place where the articles were found (Bridges «. Hawkesworth, 17 Eng. L. and Eq. 434).
    In Matthews *. Harsell (1 E. D. Smith, 393), a doubt was expressed as to whether a servant who finds a chattel in the house of an employer, acquired a title to it; but this doubt arpse from the relation between master and servant, and was not suggested by the place where the chattel was found. Held under these and other authorities (see opinion of the court) that a person finding a package of money in a railroad car is entitled to the custody and possession of the same, as against the railroad company or its officers; and if the finder places it in their custody for the purpose of finding the true owner, they hold it only as the bailee of the finder (the bailor), and they cannot hold it against their bailor’s wishes, nor dispute his title to the same.
    The only qualification to this ruling is where the bailee has been compelled by action to return or pay for the property to the real owner (Cook v. Holt, 48 H. Y. 275).
    The finder of a lost chattel has no lien upon it for any expenses incurred in respect to it, either for rescuing or preserving it (Baker ®. Hoag, 7 Barb. 118), except for salvage by the common law or statutes concerning wrecks. This principle was confirmed in the last cited case in the Court of Appeals (7 JY. Y. 555).
    In an action of interpleader the following rules apply :
    It cannot be maintained except in cases where the plaintiff can be protected in no other way from an unjust litigation in which he has no interest. The object of such an action, is to protect a person standing in the situation of a stakeholder (Badeau v. Rogers, 2 Paige, 209).
    The plaintiff must disclaim any interest in the subject of the action (Atkinson v. Marks, 1 Oon. 691). It must be averred that the plaintiff is uncertain to whom the right belongs ( Wélf. Eq. B. 152), and he must offer to, and actually bring the money into court, before taking any steps in the cause ,(Meux ®. Bell, 6 Sim. 75), and the action must be brought before or immediately after the commencement of the suit at law, and not after verdict or judgment therein (Cornish ®. Farmer, 1 Young & Jer. 338). .
    And an action of this nature will not lie where as to either of the defendants the plaintiff is or has been a wrongdoer in the premises (Shaw ® Coster, 8 Paige, 339 ; Rogers ®. Weir, 34 JY. Y. 469; Lund ®. Seaman’s Savings Bank, 20 How. Pr. R. 461 also same case, 23 How. Pr. R. 258).
    The ground of an interpleader is that there is a conflict between two or more persons claiming the same debt or property, and the double claim has not been occasioned by the person liable to discharge the debt, or deliver up the property (Wilson ®. Duncan, 8 Abb. 354; Deesborough ®. Harris, 31 Eng. L. and Eq. 592).
    Before Monell, Sedgwick, and Van Vorst, JJ.
    
      Decided April 5, 1873.
    Appeal from a judgment.
    
      The defendant Haws, a passenger in one of the plaintiffs’ cars, found a package- in the car containing $1,045 in money. He handed it to the conductor without examination, and told him he had found it; supposed some one had dropped it; requested the conductor to inquire for the loser, and if not found, to report to him on his return trip.
    The conductor gave -the package to the plaintiffs’ treasurer. The owner was not found. After waiting several months Haws demanded the money of the plaintiffs, and on their refusal, commenced an action for its recovery, and prosecuted it to the recovery of a verdict for the amount. After such recovery, and before any judgment had been entered, the defendant Malady claimed to have lost the money, and demanded it of the plaintiffs, threatening a suit if it was not paid to him.
    Thereupon this action was commenced, the complaint alleging substantially the above facts, and demanded as relief that the claim of Malady to said money may in this action be judicially passed upon and determined by this court, and payment thereof be directed to him, 'if he shall satisfactorily establish his ownership thereof; that the defendant Haws may be enjoined" and restrained from prosecuting his said action against this plaintiff for the recovery of the said money, and from - taking any proceedings upon the said judgment, so recovered by him or in said action.
    That the costs and expenses of this plaintiff, in this action, and in the said action commenced against this plaintiff, by said defendant Haws, as aforesaid, may be adjudged to be paid out of the said money.
    The action was tried by a justice of this court, without a jury.
    The conductor testified that Haws said to him that he had found a package in the car, and said, “I give it to you as rightfully belonging to you.” “Ward, you are the proper man to have it; probably it belongs to the short man who stepped off, or to some one in the train.”
    The plaintiffs proved that it was a regulation of the company for the government of its employés, requiring articles found in the cars to be left in the company’s office.
    Haws testified that he said to the conductor, “ I found this package on the floor of the rear car, and I suppose some one on the car has dropped it; you had better take it, and see if the owner applies to you for it; if he does not, when you return, I want you to see me, and tell me what you have done with it.”
    The court found as facts:
    That on or about the 28th day of January, 1868, the defendant, George Haws, found in one of the cars of the plaintiffs’, at or near White Plains, in the county of Westchester, a package containing one thousand and forty-five dollars in money.
    That said defendant, George Haws, delivered said sum of one thousand and forty-five dollars to the plaintiffs, to be held by them, for the owner thereof, and that the plaintiffs accepted the said sum of one thousand and forty-five dollars.
    That on or about the 28th day of January, 1868, the defendant, Peter Malady, was a passenger in one of the cars of the plaintiffs’, and while at or near the said White Plains, lost said package containing said sum of one thousand and forty-five dollars.
    That Peter Malady was and is the owner of said sum of money lost by him as aforesaid.
    That in the month of November, 1868, the defendant, George Haws, commenced an action in this court against this plaintiff, that the said sum of one thousand and forty-five dollars be paid to him ; and in said action the defendant, George Haws, obtained a verdict against this plaintiff for the sum of eleven hundred and twenty dollars.
    
      That said money as claimed by the defendant, George Haws, and for which he obtained a verdict against this plaintiff,. was the money belonging to the defendant Malady, claimed by the defendant Malady in this action.
    That the plaintiffs had no interest and made no claim to said money, other than as trustees thereof for the actual owner, and the plaintiffs’ expenses in protecting said money for the owner thereof.
    That defendant Haws has no interest in or claim to said money.
    That the plaintiff is entitled to be paid out of said money for its taxable disbursements in defending said action, so as aforesaid brought by said Haws, and the costs and disbursements in the prosecution of this action, and the costs on appeal and the costs .and disbursements on said trial before, and a counsel fee of one hundred dollars in addition thereto.
    CONCLUSIONS OE LAW.
    That the defendant, Peter Malady, is the true and legal owner of said money.
    That the defendant, George Haws, is not the owner of and has no claim to or interest in said money.
    That the plaintiff has held said money as trustee for the owner thereof, and is entitled to be paid out of said money for the costs and expenses incurred by it, a sum which shall be equal to the taxable costs and disbursements in this action, the taxable disbursements in the said suit brought by the said Haws, and the costs on appeal and the costs and disbursements before trial on the new trial, together with a counsel fee of one hundred dollars.
    That the plaintiff is indebted to the defendant, Peter Malady, upon said money so held by the plaintiff in the sum of one thousand and forty-five dollars principal, and three hundred and eight Tfg- dollars interest, amounting together to the sum of one thousand three hundred and fifty-three yfg- dollars, and out of said sum the plaintiff is entitled to deduct for its costs and expenses a sum which shall be equal to the taxable disbursements in the action brought by said Haws against it, and the taxable costs and disbursements in this action, and costs on the appeal before argument, and the costs and disbursements before trial on a new trial, together with a counsel fee of one hundred dollars.
    Judgment was thereupon ordered as follows :
    That the plaintiff be allowed out of said money a sum which shall be equal to the aggregate of the taxable disbursements in the action brought by said Haws against it, and the taxable costs and disbursements in this action, and the costs on appeal before argument, and the costs and disbursements in new trial before trial, together with a counsel fee of one hundred dollars.
    That plaintiff pay to the defendant, Peter Malady, the balance of said sum of one thousand three hundred and fifty-three dollars, remaining after deducting therefrom the sum hereby allowed to it for its costs and expenses.
    That the defendant, George Haws, be enjoined and restrained from prosecuting this said action or any action against this plaintiff, for the recovery of said money, and from taking any proceedings upon the said verdict recovered by him against this plaintiff in said action, brought by him or otherwise, for the recovery of said money from the plaintiff or any part thereof.
    Judgment was entered in conformity with the decision, and “that the defendant, George Haws, be, and he hereby is, enjoined and restrained from prosecuting his said action, or any action, against this plaintiff for the recovery of said money, namely, the money which forms the subject-matter of this action, and from taking
    
      any proceedings upon the said verdict recovered by him against this plaintiff in said action brought by him, or otherwise, for the recovery of said money from this plaintiff, or any part thereof.” •
    The plaintiffs and the defendant Haws appealed.
    The defendant Malady did not. appeal.
    The plaintiffs’ appeal was abandoned, and the case was he=.rd only on the appeal of Haws.
    
      Mr. E. Cook, for appellant (Haws).
    
      Mr. M. Beach, for respondent (plaintiff).
    
      Mr. Wernberg, for respondent (Malady).
   By the Court.—Monell, J.

I think it quite free from doubt, that the direction of the learned justice in the action of Haws against the railroad company was correct. As between those parties, Haws was the owner of the money, and had the right to its custody ; and his claim or title could be made to yield only to the superior title of the real owner. But, until the real owner was found, the finder as against all others is to be regarded as the owner (McLaughlin v. Waite, 5 Wend. 405; Amory v. Delamire, 1 Strange, 505).

And such finding is sufficient to give a right of action by the finder against any person who wrongfully deprives him of the possession (Ibid.).

Nor was such right affected by the fact that the package was found in one of the plaintiffs’ cars. •

In McLaughlin v. Waite (supra), a distinction is made between articles secreted in the earth and such as are found upon the surface. The latter, the chancellor says, if no owner appears to claim them, it is presumed they have been intentionally abandoned by the former proprietor. They consequently belong to the finder.

, In Matthews 'o. Harsel, 1 E. D. Smith, 393, a package of Texas notes were found by a servant in the house of her mistress. She handed the package to her mistress to keep for her, who intrusted them to the defendant to ascertain their value. The defendant sold them and appropriated the proceeds. The servant sued and recovered.

A doubt was expressed whether a servant, who finds a chattel in the house of his employer, acquired a title to it; but the doubt grew out of the relation between such persons, and was not suggested by the place where the chattel was found.

In Bridges v. Hawkesworth, 7 Eng. L. and Eq. 424, the plaintiff found upon the floor of the defendant’s shop a parcel containing bank notes. The defendant was told by the plaintiff that he had found the notes, and he “asked the defendant to keep them until the owner-appeared to claim them.” The defendant advertised the notes, but no one appeared to claim them. Upon a subsequent demand and refusal, the action was brought. The case turned upon the single point whether the circumstance of the notes having been found inside the defendant’s shop, gave him the right to have them as against the plaintiff who found them. It was held (Patterson, J.) that such circumstances did not take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons, except the real owner; and that the place in which it is found makes no legal difference.

The regulation, of which there was some proof, to the effect that articles found in the cars should be left in the company’s office, was merely for the government of its employes, and could not affect the rights of any finder who did not hold a relation of employe of the company.

The finding of. fact by the court was, that Haws delivered the money to the plaintiffs “ to be held by them for the owner, and that they accepted the same.” There is nothing in the finding one way or the other, that Haws' did or did not intend to divest himself of any title that he might have to it.

There was nothing in the form or manner of the deposit from which it could be found or inferred that Haws did so intend; but, as in the case of Bridges v. Hawkesworth (supra), it could have been found, had it been necessary, that at the time Haws delivered the notes to the plaintiff, he did not intend to divest himself of his title to them. In that, as in this case, the notes were given to be kept until the owner appeared to claim them.

It stands then supported by authority, that, as between Haws and the railroad company, the former had the better right to the money, and on their refusal to return it, became liable to him.

The conclusion of the justice, that the plaintiffs held the money as trustees for the owner, is not, therefore, except perhaps as between the company and Malady, in harmony with the rules of law I have stated. They did not hold it as trustees, nor could they assert any such relation to it as respects their relation to Haws, the finder.

At the most, the company could claim, that they held the money as mere bailees for Haws, the finder and bailor ; and in that character, it is well settled that they could not dispute their bailor’s title (Vosburgh v. Huntington, 15 Abb. 254; 2 Story Eq. Jus. §§ 816, 817), and the only qualification of this rule is, where the bailee has been compelled by action, of which the bailor had notice, to pay for the property to one having the true title (Cook v. Holt, 48 N. Y. R. 275). Therefore, even had Malady appeared and claimed the money as the real owner, the railroad company could not have set up such claim as a defence to Haws’ action.

Nothing short of a recovery in an action by Malady would have been available, and it is doubtful if such recovery would be sufficient without also showing aliunde that Malady was the true owner (Mierson v. Hope, 2 Sweeny, 561).

The finder of a lost chattel has no lien upon it for any expenses incurred in respect to it, either for rescuing or preserving it (Baker v. Hoag, 7 Barb. 113), except for salvage hy the common law or statute concerning wrecks. This principle was confirmed by the Court of Appeals in the same case (7 N. Y. R. 555).

It therefore follows, that Haws had no lien upon the money for any expenses incurred hy him in respect to it; and also, and a fortiori, that the railroad company had no such lien.

They were in all respects subordinated to the rights of Haws, and could look, if they could look at all, only to him, as their principal, for any expenses incurred.

In this view it is impossible to reconcile with the law that part of the judgment which awards to the plaintiffs, to he paid out of the fund, the costs and expenses they had incurred in defending themselves against the rightful suit of Haws, and their costs and expenses in prosecuting this action.

But, as that part of the judgment has not been appealed from hy the defendant Malady, who alone is affected hy it, it is not necessary to pursue the subject further.

This action is claimed to he in the nature of an inter-pleader. It is alleged that the plaintiffs have a sum of money delivered to them hy Haws, the finder, which the defendant Malady claims as owner ; and the plaintiffs ask that Malady’s right to it may judicially he determined hy the court, and that Haws he enjoined from further prosecuting his action.

There is no provision of law which authorizes such an action. The 122d section of the Code is the only statute which provides a remedy for settling adverse claims or interests. Under that section, the court may determine any controversy between the parties before it, or, when a complete determination cannot be had without the presence of other parties, may order them to be brought in. So a person, not a party to the action, but having an interest in the subject of it, may apply to be made a party.

Bat that provision of the statute applies to pending actions, and does not in terms authorize an independent action to reach the same results.

Thus the railroad company, when Malady made claim to the money, could by supplemental answer, have had him brought into the pending action of Haws ; or Malady could have applied to have himself made a party to it.

This view of the section was taken in Beck v. Stephani (9 How. Pr. R. 193).

As this is an independent action; it remains to be seen whether it can be sustained upon principles applicable to actions of interpleader.

The object of that action is to protect a person standing in the situation of an innocent stakeholder (Badeau v. Rogers, 2 Paige, 209).

The plaintiff must disclaim any interest in the subject of the action (Atkinson v. Mauks, 1 Cow. 691). It must be averred that the plaintiff is uncertain as to whom the right belongs (Welf. Eq. Pl. 152), and he must also aver an offer to, and actually bring the money into court, before taking any steps in the cause (Meux v. Bell, 6 Sim. 75). And finally, the action of interpleader cannot be maintained, except in cases where the plaintiff can in no other way be protected from an unjust litigation, in which he has no interest (Badeau v. Rogers, supra), and in all cases the action must -be brought immediately after or before the commencement of proceedings at law, and not after verdict or judgment has been obtained (Cornish v. Farmer, 1 Young & Jer. 333).

From these elements which enter into the action of interpleader, it will be seen that few of them exist in the present action.

(1) . The plaintiffs do not fully disclaim all interest in the money, but allege that they held it as trustee for the real owner, and for their reasonable expenses, and counsel fees, in the protection of the money for the true oioner.

(2) . It is not alleged that it is uncertain to whom the money belongs.

(3) . There was no offer to or actual bringing the money into court.

Again, the action was not brought until after verdict; and there are other remedies provided which the plaintiffs might have resorted to.

These are in my judgment sufficient to deprive the action of any claim to be one of interpleader, or even in the nature of an interpleader.

But another reason exists which is probably more conclusive. An action of this nature will not lie where as to either of the defendants the plaintiff is a wrong-doer (Shaw v. Coster, 8 Paige, 339). In that case the sheriff filed a bill to settle conflicting claims of several persons to property, which he had levied upon and sold under an execution. But the bill was dismissed on the ground that as to the claimants to the property, the sheriff was quasi a trespasser, and that they could not be compelled to come into a court of equity and litigate the question of right to such property with the creditor in the execution, instead of trying the question at law against the sheriff himself as the wrong-doer. This case is cited and approved in Rogers v. Weir, 34 N. Y. R. 469.

In Lund v. Seaman’s Saving Bank, 20 How. Pr. R. 461, a motion was made by the defendants to substitute an alleged claimant of the money in their place as defendants, which was denied. The court held this language: “The plaintiff might well claim that the bank having received the money from him, and having agreed to repay the same to him, could not with legal propriety recognize the legal claims of others who were not in privity with him, or claiming through him, or under his title, but by a superior and hostile title.” See also same case, 23 How. Pr. R. 258.

We have already seen that towards Haws the railroad company was a wrong-doer.

The refusal to return the money to him, put the latter in default, amounting to a conversion, and estopped them from setting up title in any third person (Trigg v. Hitz, 17 Abbott, 436). They did not qualify their refusal, but claimed a right to it, superior to the claim of Haws, and the court in Rogers v. Weir (supra) say, such a refusal is evidence of a conversion.

And Mr. Justice Hoffman in this court (Wilson v. Duncan, 8 Abb. 354), says (quoting from the chancellor in Deesborough v. Harris, 31 Eng. L. and Eq. 592), that the ground of an interpleader is that there is a conflict between two or more persons claiming the same debt, and that the double claim has not,been occasioned by the conduct of the person who is liable to discharge the debt or obligation.

The plaintiffs by their misconduct have caused the double claim to be made. Had they delivered the money to Haws as they were legally bound to do, there would have been no necessity for any interpleading, and Haws would have had the right of having Malady’s claim to it tried and determined by a jury, and not without a jury, as was done in this case.

Upon mature consideration of the facts and circumstances of this case, from the time the money was found by Haws, I am satisfied that this action was and is without legal justification. The plaintiffs were clearly in the wrong when they refused to return the money to Haws, and equally in the wrong when they drove him to his suit, and then defended it.

They had no legal defence, and standing in the character of the mere agents or "bailees of Haws, they could not dispute his title in that action, nor should they "be permitted to dispute it in any other.

The result is, that in our judgment Haws ought not to have been restrained in the prosecution of his suit for the recovery of the money ; or if he was, he should at least have been allowed and paid his reasonable expenses incurred in that litigation. The railroad company were permitted to retain a sum sufficient to indemnify themselves, for their expenses of an action which their own wrongful act had caused, when they had no lien upon the fund of any kind whatever. But no such provision was made for Haws. He, the finder, was not only not rewarded, but was refused all indemnity for his expenses in a litigation, forced upon him by the railroad company, and in which he was successful. Hot only* as owner, as between himself and the company, was he right in bringing the action, but also, in one sense, he was endeavoring to protect the fund for the real owner, and it seems to me that if any one was entitled to indemnity, Haws’ claim should have been first allowed: more especially as his recovery against the company carried the costs of the action, and of which he was wholly deprived by the judgment in this.

The hardship is, that this whole litigation falls heavily upon Malady. But it cannot be regarded as anything other than a misfortune which attends almost every "loser of property in his endeavor to recover it.

He must prove his title, and usually in a court of law.

It is probably not too late for him to do so again. He can still apply to be let in to defend Haws’ suit; and upon that application the terms can be adjusted to protect and indemnify Haws. If after Malady is let in to defend, Haws continues the litigation, he cannot complain if he has to pay costs.

Our conclusions leave Haws at liberty to prosecute his action to judgment; but as Malady did not appeal, and as the appeal of the railroad company was abandoned, the remainder of the judgment must stand.

We, therefore, upon Haws’ appeal reverse the judgment, so far as it restrains his prosecuting his action against the railroad company, and direct judgment absolute for him, dissolving the injunction, and dismissing the complaint as to him, with costs of the trial at Special Term, but without costs to either party upon this appeal.

Sedgwick and Van Vorst, JJ., concurred.  