
    Jeremiah F. Sheehan, Resp’t, v. Israel Golden, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Replevin—When not lie.
    An action of replevin by the vendor against the purchaser and the sheriff who has levied upon the goods on an execution against the purchaser cannot be maintained on the ground that the sale was procured by fraud, where he did not discover the alleged fraud, took no steps to rescind the contract of sale, nor indicated his intention to do so, until after the levy.
    
      % Same—Judgment.
    A defendant, who is not entitled to a return of the property to himself, cannot have judgment for its return to another defendant who has not asked for it.
    Appeal from a judgment, dismissing the complaint, entered on a verdict directed by the court in favor of defendants.
    
      E. L. Jelleneck, for appellant; Wallace Thayer, for resp’t.
   Dwight, P. J.

The action was replevin for a quantity of goods alleged to have been obtained by the defendant Golden from the plaintiff by means of fraudulent representations. The goods were taken by the replevin process from the possession of the defendant Beck, sheriff of Erie county, who had previously seized them by virtue of an execution against the defendant Golden. The goods were not reclaimed pending the action, and the defendant Beck made default. The defendant Golden answered, denying the fraud charged against him, and alleging that at the time of the levy by the sheriff the goods were the property of him, the defendant Golden, and that by virtue of such levy the defendant Beck had' acquired all his (Golden’s) right, title and interest therein. He demanded judgment for the return of the goods, with damages for their taking and detention, besides costs. On the trial it appeared that the plaintiff did not discover the alleged fraud until after the levy by the sheriff, and, of course, had taken no steps to rescind the contract of sale, nor indicated his intention so to do, until after such levy; and thereupon the court at the circuit, under the case of Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496, directed a verdict of no cause of action. With this the defendant was not content, but asked for the direction of a verdict to the effect that the defendant Beck was entitled to a return of the property. This was refused, and the defendant excepted, and that exception is the ground of his appeal from the judgment dismissing the complaint, and for costs, which he caused to be entered on the verdict directed as above.

It is conceded that the action could not be maintained under the doctrine of Wise v. Grant, supra. The question is whether, such being the case, the defendant Golden was entitled to a judgment for the return of the property to the defendant Beck. Of course, he was not entitled to have it returned to himself. By his answer he bad expressly disclaimed for himself all right and title and interest therein after the levy by the sheriff. This disclaimer was probably too broad. He had at least a reversionary interest in case the goods sold for more than the amount of the execution. But he had no right to the possession of the goods. That was vested in the sheriff by the levy, and it was for the sheriff to defend or to relinquish if he saw fit not to defend it. He must be supposed to have had his own reasons for not defending his possession of the property, and demanding its return to him. In failing to do so, he has acted upon his own responsibility; and the rights of others, probably, need not suffer by his default But in this action it is apparent that anybody else can interpose to obtain for him what he has declined to ask for himself. The question is not free from difficulty, and the result indicated presents some anomalies. We are inclined to think that the case is one omitted to be provided for in all the infinite detail of the statute which “gives the action to recover a chattel.” Certainly, we find nothing in the statute which favors the proposition that a defendant who is not entitled to a return of the' property to himself can have judgment for its return to another defendant who has not asked for it. The merits of the case arc all with the plaintiff. The defendant did not attempt to meet the ease, made on the trial, of his fraudulent procurement of the goods. His sole dependence was upon a technical construction of the statute, which prevented the plaintiff from maintaining his action. We are of opinion that the court at the circuit correctly decided to dismiss the complaint in this action, and leave any party aggrieved to such further remedy as he may be advised to pursue.

The judgment appealed from should be affirmed. So ordered.

All concur.  