
    John J. P. Read, App’lt, v. Charles N. Brayton, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 16, 1894.)
    
    1. Replevin—Who may.
    The owner of a chattel may, in general, replevy from any person, who has it in possession and who has no right to retain it as against him.
    2. Same—Possession oe court.
    The principle that, where the court has gained, through its receiver or other officer, possession of property, it cannot be disturbed without its permission, applies only where there.is a lawful possession under a lawful order of the court.
    3. Same.
    Where property is in the custody of the court, and an action is brought without sueh permission, the court will, if the conduct of plaintiff has not been willful, permit the action to proceed.
    4. Interpleader—Whose duty.
    Whatever may be done to procure the substitution, as defendant, of the real claimant of a title hostile to that of plaintiff, must be done by defendant.
    Appeal from order of the general term of the supreme court n the fifth judicial department, which modified and affirmed as modified an order of special term which perpetually restrained the further prosecution of this action.
    
      JSdmund P. Cottle, for app’lt; John Cunneen, for resp’t.
    
      
       Reversing 54 St. Rep. 869.
    
   Andrews, Ch. J.

The order from which this appeal is taken perpetually enjoined the plaintiff from further prosecuting the action. The action was replevin to recover the possession of two certificates of deposit issued to the plaintiff by the Marine Bank of Buffalo, payable to his order, one in 1881, and one in '1888. The defendant is the clerk of Erie county, and after the commencement of the action, and before the execution by the sheriff of the requisition requiring him to replevy the certificates, further proceedings were stayed on his application until the executors or representatives of Elizabeth and George Rockwell were brought in as parties defendant. The plaintiff appealed from the order of the special term to the general term, and. the order was affirmed by that court, with a modification, however, by'which the stay was made absolute. The general term proceeded on the ground that the certificates were held by the defendant as the officer of the court, and that the commencement of an action to replevy them, against the defendant, without the leave of the court, which had not been obtained, was a contempt of its authority. We think the orders of the special and general terms were erroneous and that a stay of the plaintiff’s proceedings, either conditional or absolute, was unauthorized.

It must be assumed on this appeal that the certificates were the property of the plaintiff. They are unindorsed, and the title of the plaintiff is asserted in the affidavit in the replevin proceedings. It is admitted that they are in the custody of the defendant and that he refused to deliver them to the plaintiff. The action of replevin was, therefore, brought against him, and it was no defense that he was in possession as agent of another, who had no right to possession as against the true owner. The owner of a chattel may in general replevy from any person who has it in possession and who has no right to retain it as against him. Hall v. White, 106 Mass. 599; Leighton v. Harwood, 111 id. 67; Rose v. Cash, 57 Ind. 278; Herzberg v. Lasher, 6 Mo. 483. The plaintiff, prior to the commencement of this action, brought an action against the Marine Bank to recover the deposits represented by the certificates. The drank, among other defenses, alleged that the certificates were in the possession of George Rockwell as part of the assets of the estate of his deceased wife, the sister of the plaintiff, and that t-he moneys deposited belonged to her and were deposited by the plaintiff as her agent. On the trial of that action the certificates were produced by George Rockwell under a subpoena duces, and were put in evidence by the plaintiff. The court directed a verdict for the plaintiff on the certificates, and at the same time, on its own motion, directed that the certificates be deposited with the clerk of the court and that the clerk should indorse thereon the fact that they were in judgment -.against the Marine Bank, and he -was further directed to seal them up and retain then until the further order of the court. The direction was obeyed, and on the expiration of the term of office of the then cleric, the certificates were by him delivered to the defendant in this, action, his successor in office, who held them under this delivery at the commencement of this action. The judgment in favor of the plaintiff in the suit against the Marine Bank was reversed in this court Read v. Marine Bank, 136 N. Y. 454; 49 St. Rep, 675, on the ground that the plaintiff was not in a posh tiou to surrender the certificates at the timé of the trial, and was not, therefore, entitled to recover. The new trial in the bank case has not yet been had, and this action was brought presumably to enable the plaintiff, if he shall establish his title to the certificates, to place himself in a position on the trial of the bank action, to meet the conditions upon which his right to recover against the bank depends.

We know of no principle which entitled the court, under the circumstances disclosed, to impound the certificates and place them beyond the reach of the writ of ' replevin, at the suit of the trne owner. The purpose of the court in directing the detention seems to have been the protection of the bank which issued them, pending any further litigation as to the validity of the judgment. The reversal of the judgment rendered any further control of the certificates by the court or its officer unnecessary for the purpose indicated. The direction by the trial judge, that the certificates should be retained by the clerk until the further order of the court, was a'Sijmmary assumption of authority, and clothed the clerk with no immunity from liability to respond in an action by the true owner to recover the certificates. The principle that where the court has, in the administration of justice, gained possession through its receiver or other officer, of the property in litigation, it is deemed to be in the custody of the law, and that this custody cannot be disturbed without permission of the court, has here no appropriate application. The principle applies only where there is a lawful possession under a lawful order of the court, and even in cases property is in the hands of the receiver lawfully appointed, courts are very cautious not to embarrass persons claiming title» hostile to the receiver from, pursuing the usual legal remedies for the enforcement of their rights. A receiver is not protected under a general order appointing him receiver of the property of a bankrupt or other person against replevin or other common-law action brought by a third person, claiming paramount title to property in his possession as receiver. Corn Exchange Bank v. Blye, 101 N. Y. 303. So, also, while the property of a judgment debtor taken on execution may be in the custody of the law, so as to prevent any interference by him with the possession of the officer, it may -be replevied by a third person cla ming superior title. Clark v. Skinner, 20 Jo. 468. Even where the property is in the custody of the law it is matter of course for the court, on application made in good faith, to permit suit to be brought by a third person claiming rights therein, which cannot be fairly adjudicated in the original action or proceeding, and in such case, if the action has been brought without such prior permission, the court will, if the conduct of the plaintiff has not been willful, permit the action to proceed. Hills v. Parker, 111 Mass. 508. The direction of the court made on the trial of the Marine Bank case, committing the certificates to the custody of the then clerk, was not made in the course of any contest between the rival claimants of the certifie cates. The question of title was not being tried as between them-It was involved in the issue made between the plaintiff and the bank. The estate of the plaintiff’s sister was not bound by any adjudication of title made in that action. Her husband brought the certificates into court under compulsion of a subpoena. , He could not lawfully be deprived of the possession of the certificates by a summary order of the judge. The order as against him was a nullity, and it was a nullity also so far as it tended to deprive the plaintiff of his right to bring an action in replevin against the clerk or any other person in possession of the certificates. When the judgment of the Marine Bank was rendered, the whole purpose of the order was spent We think the plaintiff was not bound, as a preliminary to his bringing his action against the clerk, to apply for leave to the court. Such an application could not have been justly denied, if leave was necessary, and even in that case it would be a harsh exercise of authority which visits the plaintiff with the penalty of an absolute stay of his proceedings in the action, for the technical omission to ask the leave of the court to bring it, which could not properly have been refused if application had been made.

The plaintiff was not-bound to procure the appointment of representatives of the estates of Mrs. Rockwell and her husband and to apply to have them brought in as defendants. The Code gives a remedy where a third person makes a claim to the property involved in a replevin action, Code, §§ 1709 and 1710, and whatever might be done in procuring a substitution of the real claimant of a hostile title to that of the plaintiff, as defendant in place of the original defendant, must be done by the defendant. ¡'That burden he cannot impose on the plaintiff. The clerk may be put to trouble and expense in defending the action, without fault of his own, but he stands as any other custodian of property who has assumed and strives to retain the custody as vagainst the true owner, without lawful authority.

The orders of the special and general terms should be reversed, with costs. All concur. Orders reversed.  