
    Alfred C. Van Wagonen, App’lt, v. Ezekiel Terpenning, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    Injunction—To prevent disposal of personal property does not restrain ACTION FOR ITS CONVERSION.
    An injunction granted in an action for separation, restraining the husband from disposing or interfering with the wife’s personal property, does not operate to prevent an action by the husband to recover for the conversion of such property by a third person or stay the running of the statute of limitations against such an action.
    Appeal from judgment of the general term of the supreme court, in the third judicial department, affirming a judgment entered on report of a referee in favor of the defendant.
    
      A. T. Clearwater, for app’lt; F. L. Westbrook, for resp’t
    
      
       Affirming 11 N. Y. State Rep.. 805.
    
   Bradley, J.

This action was commenced in January, 1883, to recover for the alleged conversion by the defendant of a quantity of personal property. The finding of the referee that the alleged cause of action accrued in April or May, 1875, was warranted by the evidence, and his conclusion that the plaintiff was not entitled to recover must be sustained unless the operation of the statute of limitation in its application to the plaintiff’s cause of action was suspended for some and sufficient time to relieve it from that defense, and that is dependent upon the effect of a temporary injunction order made and served upon the plaintiff in June, 1874, in an action brought by Margaret Yan Wagonen, the wife of the plaintiff, against him for a separation, and by which he was enjoined from disposing of or in any manner interfering with her personal property; and the property mentioned in the complaint in this action was within the restraining terms of the injunction. The property was then upon premises the legal title to which was in the plaintiff’s wife, and upon which the defendant had a mortgage made by her and her husband.

The mortgage was foreclosed and the premises purchased by the defendant on sale pursuant to the decree of foreclosure. By virtue of a writ of assistance in March, 1875, the plaintiff was removed from the premises and the defendant entered into the possession of them. The property in question was then there. The complaint in the wife’s action was dismissed and the injunction dissolved in April, 1881. The inquiry is whether, until then, the commencement of an action against the defendant for the cause herein alleged was stayed within the meaning of the statute which provided that, “ when the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action.” Code Pro., § 105. The present Code is substantially the same. Code Civ. Pro., § 406. It must for the purposes of this review be assumed that the plaintiff had such possession of or proprietary right in the personal property mentioned in the complaint as to enable him to maintain an action against the defendant for the alleged conversion, which arose shortly after the defendant went into the possession of the realty upon which it then was. The interference with the property by the plaintiff enjoined by the injunction was that which might result to the prejudice of his wife. The protection of it against the acts of others was not denied to him by it. His right was to retain the possession of it, and to use such means as he might deem necessary to maintain it, and to take care of or preserve the property. If taken from him without right or authority he might maintain an action to recover it. The injunction in terms did not restrain him from bringing an action having relation to the property, and his mere act of doing so to recover for its conversion would not constitute any interference with it, nor would the recovery of a judgment have that effect, although the payment or collection of the judgment would operate to transfer the property to the party against whom such recovery was had.

The commencement of the action would, therefore, have been one step on the way towards the consummation of that which might in law operate as a disposition of the property. But at the same time it would be done by way of protection of the interest of the owner against the unlawful interference with it by a stranger to any right in the property, and so far it would be consistent with the interest of the party at whose instance the injunction was granted. And if such party could not be prejudiced by it, the defendant was. not restrained any futher than the injunction, as reasonably interpreted by its terms, enjoined his action. Parker v. Wakeman, 10 Paige, 485; Hudson v. Plets, 11 id., 180. The defendant was a stranger to the injunction, and entitled to the benefit of the statute of limitations as a defense, unless the plaintiff was by it denied during its continuance the right within the meaning of the statute before mentioned to commence the action. And in such case, as was said by Judge Andrews in Wilkinson v. First National F. Ins. Co., 72 N. Y., 499, an injunction order will not be construed to restrain acts not injurious to the rights of the party in whose behalf it is obtained, and much less those which are beneficial to him, unless the words clearly have that import or effect. A party enjoined from interfering with or disposing of property in his possession could not, without violation of such mandate, consent or voluntarily permit it to be taken by one having no right to do so from his custody; and, on the other hand, any attempt he might make in good faith to reclaim the possession of the property, or to protect his legal right as owner or bailee, would not be the interference with it prohibited by such injunctian. In the present case the property was in the possession of the plaintiff, and during the pendency of the injunction it was, as must here be assumed, wrongfully appropriated by the defendant to his own use in violation of the rights of the plaintiff; whether as owner or bailee is not important. The latter was at liberty to assert his right to maintain such relation, as against the defendant, to the property, and seek by action so far as practicable to enforce it; and for the pu'rpose of restoration of its equivalent may have resorted to an action of trespass or in trover. This is one of the rights incident to the custody of a bailee as long as the right of custody continues, and is entirely consistent with those of the bailor during that time; and it may be exercised by the former to render the bailment effectual for the protection of the beneficial owner. The plaintiff was not by the terms of the injunction enjoined from doing this for the benefit of one, either himself or his wife, who was in fact the owner of the property.

The case is distinguishable in principle from those cited by the plaintiff’s counsel. In Fincke v. Funke, 25 Hun, 616, the cause for which the action was brought did not arise from any wrongful act of the defendant during the continuance of the injunction, in violation of any right of the plaintiff, or which the latter was at liberty to challenge; but that action was bfought to recover a debt due the firm of which the plaintiff was survivor while he was subject to an injunction restraining him from “ interfering with or collecting any of the assets or property of his firm.” And in Stubbs v. Ripley, 39 Hun, 626, the same may preliminarily be gaid. There the injunction enjoined the plaintiffs to refrain from conveying, incumbering or in any manner interfering with or disposing of certain real estate; and during its operation the action was brought for the alleged purpose of settling the rights of the parties to it in a portion of such real estate, and to obtain an accounting of the rents and profits, the determination of which action, as there held, would have resulted in a definite disposition of the rents and profits of the property, and may to that extent have defeated somewhat the beneficial purpose of the action in which the injunction order was made. It may be observed that in both of those cases the situation existing when the restraint was created remained unchanged; and the purpose of the actions was, and the effect of their prosecution to determination would have been, a substantial disturbance of such situation, and therefore an interference with it, while in the present case the cause of action arose out of the violation of the right of the plaintiff while the injunction was operative, and the action would, if then brought as now, apparently have been for the protection of the rights of the person beneficially concerned, and in aid of the purpose of the injunction rather than otherwise.

It was so held in McQueen v. Babcock, 41 Barb., 337 ; 3 Keyes, 428; 3 Abb. Ct. App., 129, and the distinction between that case and this one is, that there the plaintiff was an assignee for the benefit of creditors of his assignor. His relation was that of trustee, and the action was brought to protect the rights of any parties who should eventually be entitled to the property wrongfully taken from his custody. The injunction operated on him there as it did on the plaintiff here, and the purpose of it in both actions was the same. The custody of the plaintiffs in both actions must be deemed to have been equally lawful and recognized as such until determined to have been otherwise. The purpose of the action in which the injunction in that case was obtained was to set aside the assignment, and it was upon the theory that the plaintiff there, as against the creditors prosecuting it, was not trustee, by reason of the invalidity for fraud of the trust which the assignor sought to create. And the reason which existed for the construction and effect given to the injunction there is applicable to the one under consideration. These views lead to the conclusion that the commencement of the action was not stayed by the injunction and that as the consequence, in view of the fact found by the referee, the plaintiff’s right of action against the defendant was barred by the statute of limitations at the time it was commenced.

The judgment should be affirmed.

All concur.  