
    Leinkauf Banking Company, Respondent, v. William F. Grell, as Sheriff of the County of New York, Appellant.
    
      BUI of lading—transfer thereof as collateral to a draft drawn on the consignee— rights of the transferee—the consignor has not a leviable interest in the merchandise —notice to the sheriff that the merchandise is “ the property’’ of the transferee.
    
    A person who makes an advance upon merchandise in transit by discounting r. draft drawn by the consignors upon the consignee, and having the bill of lading indorsed to Mm, is a pledgee of the merchandise and is entitled to its possession while the draft remains unpaid.
    The fact that the consignors of the merchandise would be entitled to any surplus remaining after the application of the proceeds of sale of the merchandise to the payment of the draft, does not entitle the sheriff to take the merchandise from the possession of the pledgee under an attachment against the consignors.
    A notice served by the pledgee upon the sheriff when the merchandise was seized, to the effect that such merchandise was “ the property ” of the pledgee, does not prevent the pledgee from recovering possession of the property in an.action of replevin in which he states, more definitely and precisely, the nature of his property right in the merchandise.
    Appeal by the defendant,' William F. Grell, as sheriff of the county of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on. the 29th day of October, 1900, upon the verdict of a jury rendered by direction of the court, and also from án order entered in said clerk’s office on the 8th day of November, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Philip J. Britt, for the- appellant.
    
      Joseph M. Proskcmer, for the respondent.
   Patterson, J.:

This action is in replevin and upon the trial a verdict was directed for the plaintiff for the value óf the property, the return of the chattels being impossible by reason of their having been sold under an order of the court pending the action. From the judgment entered upon the verdict and from an order denying a motion for a new trial, the defendant appeals. When suit was brought, the property was' in the possession of the sheriff, who had levied upon it under an attachment in an action brought by the Pitch Pine Lumber Company against Hieronymus Brothers, which firm had caused the property, consisting of a quantity of lumber, to be shipped from Mobile,. Ala., consigned to the Pitch Pine Lumber Company of- New York, the shipment being intended as a part performance of a contract for the sale and delivery of a larger quantity of lumber, which had been made between the Pitch Pine Lumber Company and Hieronymus Brothers. There had been a breach of contract on the part of that firm relating to prior deliveries under it. The Pitch Pine Lumber Company sued for damages for that breach, and the attachment under which the sheriff levied on the property involved herein was issued on March 5,1900. On February 9, 1900, Hieronymus Brothers applied to the plaintiff,, a corpo^ ration of the State 'of Alabama, to discount a draft for the sum of $1,140.53, which represented the value of the lumber and which draft was drawn upon the Pitch Pine Lumber Company. Attached ‘to that draft was a bill of lading for the lumber. The discount was granted and the proceeds of the draft were credited to the account of Hieronymus Brothers with the plaintiff, and the whole amount thus credited was drawn out upon checks of Hieronymus Brothers. When the sheriff levied upon the property on the arrival of the •shipment at New York, which was about a month after the transaction of Hieronymus.Brothers with the plaintiff; the latter served a notice upon the sheriff dated March Y, 1900, in which, among other things, it stated that the chattels were the property of the Leinkauf Banking Company. This action, according to the date of the summons, was brought on the 8th of March, 1900, The complaint sets forth the circumstances under which the plaintiff became possessed of the draft and of the bill of lading, the latter having been indoi’sed to it by Hieronymus Brothers, and alleges that the “ lumber was thereupon and thereby transferred and set over to the plaintiff as security for the acceptance and ■payment of said draft,” and that said draft was not accepted or paid, and that the plaintiff is still the owner of the draft and bill of lading, and that it paid the freight charges upon the shipment, and that it held and still holds the right to said lumber as security for said draft and said freight charges, and is entitled to the immediate possession of the lumber. The ordinary allegations in an action of replevin are also contained in the complaint. The answer contains denials of the allegations of the complaint and sets up the right to retain the property under the attachment before referred to, and also, on information and belief, that the goods and chattels attached were at the time of the levy the property of Hieronymus Brothers, or that they had a leviable interest therein, and that the lumber was “ liable to be levied upon and taken under ” the attachment.

On the trial some proof was given by the defendant to show the nature and condition of the general bank account of Hieronymus Brothers with the plaintiff, from which it was claimed that the plaintiff was not a bona fide holder for value of the draft and the bill of lading, but it is entirely apparent from the whole case that this transaction between Hieronymus Brothers and the plaintiff was none other than the ordinary commercial one of an advance of money upon merchandise by discounting a draft. There is nothing in the nature of the transaction or of the circumstances surrounding it to show any other situation. It is altogether immaterial what the condition of the general bank account of Hieronymus Brothers with the plaintiff was. The proof shows the transaction to have been an independent and separate thing unaffected by any. consideration of the firm of Hieronymus Brothers being otherwise a debtor or creditor of the plaintiff. By the discount .of the draft and the transfer by indorsement to the plaintiff of the bill of lading, the plaintiff became entitled to the possession' of the merchandise while the draft remained unpaid, and it was the pledgee of that'merchandise. The sheriff'could not lawfully take it from the possession of the pledgee., The possession had been transferred by the owner, and, as' said before, the money having been advanced upon the faith of the bill of lading by the discount of the draft, the legal title to the property passed- and the transfer of the bill of lading was the same' -as an actual change of possession of the property. (Bank of Rochester v. Jones, 4 N. Y. 497; City Bank v. Rome, W. & O. R. R. Co., 44 id. 136 ; Cayuga County Nat. Bank v. Daniels, 47 id. 631; Marine Bank of Chicago v. Wright, 48 id. 1; First Nat. Bank of Cincinnati v. Kelly, 57 id. 37; Merchants’ Bank v. Union R. R. & T. Co., 69 id. 379; Commercial Bank of Keokuk v, Pfeiffer, 108 id. 242.) That Hieronymus Brothers would have had some interest in the surplus if any remained after the application of proceeds of sale, of the lumber to the payment of the draft was made could not give the sheriff a right to take the lumber from the possession of the plaintiff. It is plain, under the proofs in this case, that the plaintiff was entitled to the possession of the property at the time it was taken by the sheriff, and that there was no interest of Hieronymus Brothers in that property which could authorize the sheriff .to take it from the possession of the plaintiff and hold it under the. attachment process.

It is further objected to the judgment that the plaintiff cannot recover in this action because the nature of the claim, as stated in the complaint, differs from the claim as asserted in the notice given to the sheriff by the plaintiff when the attachment was levied in the Pine Lumber Company's action against Hieronymus Brothers. There is no actual and necessary inconsistency between those claims. The notification given to the sheriff was that said chattels are “ the property ” of the said Leinkauf Banking Company. That is but a general statement which was technically correct, but in the -complaint in this action and in the affidavit connected with the replevin process the nature of the property right is amplified and stated more definitely and precisely. There was no surprise caused to the •defendant and nothing has been done to his detriment in consequence of any difference, if there be any, in the attitudes taken by the plaintiff with respect to the lumber. The case of Hudson v. Swan (83 N. Y. 552) does not apply. That was an action in replevin in which in the complaint and upon the trial the plaintiff claimed as absolute owner, and it was held that he must stand or fall on that elaim, and that when it appeared that as against the. true owner his claim was invalid he could not fall back upon an alleged lien, and that by claiming as owner he waived the lien. But there is no variance in this case between the proofs and the pleadings. The facts relating to the plaintiff’s right as pledgee are alleged in the complaint and were proven in accordance with its allegations. The rights of the plaintiff are to be determined upon the pleadings and proofs in this action and cannot be defeated by the supposed difference between the notice given to the sheriff and the cause of action as set out in the complaint.

The judgment and order appealed from must be affirmed, with costs.

Yan Brunt, P. J., McLaughlin, Hatch and Laughlin. JJ., concurred.

Judgment and order affirmed, with costs.  