
    Dodworth v. Jones.
    To maintain an action to recover the possession of personal property, the plaintiff must prove the legal title to be in himself or a special property with a right to the possession of it, at the time the action is commenced.
    A stereotyper, who is employed to prepare stereotype plates, and makes them out of materials belonging to himself, and with his own labor, cannot be divested of his legal title to the product or plates, by a tender unaccepted, of a just compensation for his labor and materials.
    (Before Campbell, Boswouth, and Hoffman, J.J.)
    Jan. 2; Jan. 27, 1855.
    This was an action to recover possession of eighty stereotyped plates, embodying a copy of a manuscript book, prepared by the plaintiff, and called “ School for Brass Band,” and. manufactured for the purpose of printing therefrom, and publishing a volume, underpaid title. The complaint stated the plates to be of the value of $400.
    The answer put in issue the wrongful detention of the plates, and the title of the plaintiff, and averred that defendant’s firm, being stereotypers, was employed by Billings & Taylor, to make and form the eighty stereotype plates, and to furnish materials therefor, according to a certain form furnished by Billings & Taylor. That defendant’s firm did so, and the work done and materials furnished were worth $90⅜⅞, and claimed a lien to that amount. It also alleged that plaintiff had possessed himself of the plates by proceedings in this action, and prayed judgment for $100 damages, besides costs, and such further or other relief as may be proper.
    The action was tried in April, 1854, before Ch. J. Oakley and a jury. A verdict was found for plaintiff, assessing his damages at six cents, and the value of the property at $400. The verdict was taken subject to the opinion of the court at General Term, on the questions of law arising in the .case, and which were ordered to be there heard in the first instance.
    The facts are these:
    The plaintiff composed a musical work, called “School for Brass Band,” and employed Billings & Taylor, who were printers, to furnish stereotype plates and print it. They not being stereotypers, set the type, and employed defendant’s firm, who were stereotypers, to prepare the plates. Defendant’s firm prepared the plates, and furnished the materials therefor, and their labor and materials were worth $90⅛⅞.
    The plaintiff paid Billings & Taylor in full, including the cost of stereotyping. They having failed, gave plaintiff an order-, on defendant’s firm, requesting them to deliver the plates to plaintiff, on their" being paid the amount of their lien thereon; for their work on the same. The order was presented to defendant’s firm, and $95 tendered, and a delivery of the plates demanded; and a compliance therewith was refused, unless the amount due to defendant’s firm from Billings & Taylor, in general account, was paid, which balance was claimed to be over $400.
    The action, now came before the court, pursuant to the order made at the trial, on the questions of law arising in the case.
    
      A. J. Vanderpool for plaintiff.
    
      H. M. Harrington for defendant.
   By the Court.

Campbell, J.

The plaintiff cannot recover in .this action, without proving that he was entitled to the..possession of the plates at the time it was commenced.

They were made by defendant’s firm out of. materials belonging to it, and by'labor furnished by it.. The title to this product was in the firm "on the completion of the plates, and would remain in- it,' until the firm made a delivery of the plates which, was accepted.

A mere tender of the contract price, or where that was not stipulated, of a fair compensation for the. materials and labor employed in making the plates, could not divest the legal title of defendant’s firm.

What remedies might be taken by the plaintiff to prevent a use of tbe plates by defendant’s firm, if it should attempt to print tbe book, it is unnecessary to discuss.

In tbe present action, tbe plaintiff, in order ‘to recover, must establish a legal title to tbe plates, or a special property in them, with tbe right of actual possession, at tbe time it was commenced.

It is clear that be has done neither, unless tbe tender which was made, but which was not accepted, bad tbe effect to divest tbe defendant’s firm of their title, and to transfer it to tbe plaintiff.

In our judgment, no such results were produced by it, and tbe verdict must be set aside, and a new trial granted, with costs to abide tbe event. •  