
    Adele Sweeney, as Executrix under the Last Will and Testament of Daniel C. Blair, Deceased, Appellant, v. Provident Loan Society of New York, Respondent.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Pledge — Nature, requisites and validity — In general—Unauthorized or wrongful pledge.
    Possession by a father of his daughter’s diamond ring, bequeathed to her by a relative, which he has taken without authority from the executrix, is not such apparent ownership of the ring as will protect a pawnbroker who lends the father money upon it.
    Lehman, J., dissents.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, dismissing the complaint.
    W. C. Abercrombie, for appellant.
    DeForest Brothers, for respondent.
   Dayton, J.

Plaintiff sues in replevin to recover a diamond ring paivned by William C. Blair for sixty-five dollars with defendant. Daniel C. Blair died September 3, 1907, leaving a will whereby he bequeathed the ring in question to the daughter of William C. Blair. Letters testamentary were issued to plaintiff, October 17, 1907. Shortly after the death of the testator and before the letters were issued this ring was handed to William 0. Blair by one of his grandsons at the testator’s home where his will was read. Plaintiff after qualifying as executrix endeavored to obtain its return, or a receipt therefor, so that she might account for it. Finally and on June 5, 1908, William 0. Blair gave her the following, to wit: “ I hereby acknowledge receipt of a diamond ring, and emerald stud and a silver watch and chain which were left to my daughter Dorothy M. Blair according to the last will and testament of the late Daniel O. Blair. Yours etc. William C. Blair Guardian and Parent of Dorothy M. Blair.” Clearly plaintiff alone was entitled to the possession of this ring for purposes of administration. Ho title to it could pass to the beneficiary until the ascertainment of the ability of the estate to pay its debts for which the value of this ring might he liable. Certainly William C. Blair had no title to it, either individually or as natural guardian or parent of his daughter. Despondent contends that, before qualifying as executrix, she saw the ring handed to William C. Blair, made no objection and, by taking the receipt, ratified the delivery. She says, however, that she made no objection for the reason that, before qualifying, she had no authority to act; and that upon her qualification she believed it would be delivered to her by Mr. Blair, who subsequently told her he had lost it; and also that, about August 18, 1909, he admitted he had pawned it. She also testified that she made endeavors to see Mr. Blair for the purpose of obtaining the ring, with the receipt as the only result. Whereupon she brought an action against Mr. Blair and obtained judgment for $125. On these facts it can hardly be said that she as executrix ratified the delivery of the ring.

In no sense did William C. Blair have title to the property on which defendant loaned the sixty-five dollars. Of course, he had its possession when the loan was made; hut the right of a pawnbroker to advance upon jewels solely on that ground would apply to a gentleman who found them through the instrumentalities of a jimmy and a dark lantern. Comparatively slight investigation might have induced defendant not to make the loan. See Soltau v. Gerdau, 119 N. Y. 380, where apparent ownership was much stronger than that at bar, where the court says: “ While mere possession of goods is frequently prima facie evidence of title, it is merely prima facie. Whoever deals with the possessor, does it at his peril, and a purchaser from one having no other apparent title to goods than the possession thereof must see to it that his seller has the title; and if his title fails, and he is obliged to respond to the true owner of the goods, his loss is due to his own misplaced confidence, and not to that of the owner. * * * Here the defendant could have inquired into the title of Smith before he took the rubber in pledge, and his loss is due not to any wrong, neglect or misplaced confidence of the plaintiff, hut to his own neglect and abused confidence.”

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Giegerich, J., concurs in the result.

Lehman, J. (dissenting).

The plaintiff not only did not object to the giving of the ring to Blair before she qualified as executrix, but thereafter she took a receipt from him for the purpose of protecting herself as executrix. That act was consistent only with the theory that she ratified the prior delivery to Blair. Having delivered the ring to Blair with the intention apparently of divesting herself of any rights to the ring, she cannot thereafter replevin the ring from one who in good faith has loaned money to Blair upon the strength of his apparent ownership.

Judgment reversed and new trial ordered.  