
    Hoffman House, New York, Appellant, v. The Manhattan Storage and Warehouse Company, Respondent, Impleaded with Ella Hathorne, Defendant. Rose L. Barclay, Respondent.
    
      Order of substitution—action against a warehouse company for a chattel claimed by the plaintiff— when a person claiming the same should be made a party to the action, but should not be substituted for the warehouse company.
    
    Where the complaint in an action brought against the Manhattan Storage and Warehouse Company and Ella Hathorne to recover two oil paintings, alleges, that such paintings had been wrongfully taken from the possession of the plaintiff, who was the owner thereof, and had been stored by the defendant Hathorne with the warehouse company, the fact that one Rose L. Barclay .claims- title to one of the paintings and that the warehouse company assumes-that the plaintiff would not claim that the warehouse company had possession of the other painting, does not entitle the warehouse company, where the complaint has not been amended and' the plaintiff’s attorney denies that he has-made any agreement that he will not hold the warehouse company liable for both paintings, to an order substituting the said Rose L. Barclay in its place and stead.
    
      Semble, that the proper course for the warehouse company to pursue in such a case would be to make a motion to bring in said Barclay as a party defendant.
    Appeal by the plaintiff,, the Hoffman House, Hew York, from an order of the Supreme Court, made at the Hew York Special Term, and entered in the office of the clerk of the county of New York on the 14th day of April, 1902, granting the motion of the defendant, the Manhattan Storage and Warehouse Company, for an order of interpleader substituting Rose L. Barclay as defendant in the place and stead of said Manhattan Storage and Warehouse Company.
    
      Albert A. Wray, for the appellant. .
    
      Frederick Hulse, for the respondent Manhattan Storage and Warehouse Company.
   Laughlin, J.:

The action is brought to recover two oil paintings, one entitled “ Faust’s Dream ” and the other entitled “ Eve.” The complaint alleges that the Manhattan Storage and Warehouse Company is a storage and warehouse keeper; that these chattels belong to the plaintiff, were wrongfully taken from its possession, are in the possession of the Manhattan Storage and Warehouse Company, having been stored with it by the defendant Ella Hathorne and are wrongfully kept and detained from the plaintiff by the warehouse company as her-agent and bailee.

The motion proceeded on the assumption, based upon interviews with the attorney for the plaintiff, that the plaintiff would not claim .that the defendant had possession of the painting entitled “ Eve,” and that title to the other painting is claimed by Rose L. Barclay. The complaint has not been amended, and the plaintiff’s attorney denies that he has made any agreement that _ he will not hold the warehouse company for both paintings. It is not pretended that Rose L. Barclay claims title to the painting “ Eve.” The painting Faust’s Dream” was seized by the sheriff, pursuant to a replevin requisition issued in the action, and the warehouse did not rebond it and no longer has the possession or control thereof.

It would be entirely proper to bring in Rose L. Barclay as a party defendant, since she claims to own one of the paintings, but that relief was not demanded. There was, however, no authority to grant the order appealed from which, in effect, terminates the warehouse company’s liability for both paintingg/

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for an interpleader should be denied, with costs, "without prejudice to a motion on the part of the warehouse company to bring in Rose L. Barclay as a party defendant.

Van Brünt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to motion on the part of warehouse company to bring in Rose L. Barclay as a party defendant.  