
    Benjamin M. Tasker, App’lt, v. Thomas Ryan, Resp’t.
    
      (Supreme Court, Appellate Division, Third Department,
    
    
      Filed April 14, 1896.)
    
    1. Replevin—Demand.
    Before bringing replevin against a person who receives property, without knowing that the party from whom he receives it is not the owner, a demand is necessary.
    
      % Same—Demand of agent.
    ' An action of replevin will not lie against an agent for refusal to deliver, on demand, goods in the actual possession of his principal.
    Appeal from an judgment in favor of defendant
    M. H. O’Brien, for app’lt; Potter & Kellogg (Y. A. Kellogg of counsel), for resp’t ___
   PUTNAM, J.

The plaintiff, to sustain his action in the county court, was required to establish his title to the chattels described in the complaint, and that they were, or had been, wrongfully possessed, taken or detained by the defendant. I think he failed to show title. Both parties claim under De Forrest, who made a. conditional contract for the sale of the property in question, with the plaintiff’s vendor, Saunders, by which he retained the title to-the furniture until the whole purchase price was paidl Neither Saunders nor plaintiff ever paid, or tendered payment of, the balance due for such purchase price, and hence neither acquired title. The title to the furniture so remaining in De Forrest,. Brewer (under whom Newton and Hill and the order mortgagees claim) paid the balance due on the contract, and received the bill of sale, which transferred to him De Forrest’s interest in said furniture. It did not appear that Brewer made the payment toDe Forrest with money belonging to Saunders; nor was there any evidence, sufficient to submit to-a jury, that there was any breach of contract or fraud on the part of Brewer in taking the bill of sale. The evidence of the witnesses Armstrong and Hicks-tending to show that, under the contract between Saunders and? Brewer, the latter was to pay certain bills of the former, is not in conflict with the uncontradicted testimony of Brewer that he was-to pay those bills from Saunders’ share of the profits of running the hotel, and that there were, in fact, no profits. The evidence established the fact that Brewer was compelled to advance money to pay for the furniture in question. I think, therefore, he Had the right (advancing his own money to retain the furniture in the-hotel) to take an assignment of De Forrest’s interest therein; and Saunders, or the plaintiff, as his vendee, could only obtain title thereto by paying or tendering the balance due on the purchase price thereof.

I am also of the opinion that plaintiff failed to show such a wrongful interference with or detention of the property in question by the defendant as was necessary to be proved, to maintain the action against him. Brewer obtained the legal title to the furniture through the bill of sale from De Forrest, the legal owner thereof. That title Brewer transferred to the mortgagees, for whom, at the time the action was commenced, the defendant was acting as agent. If it is conceded that the act of Brewer in taking the bill of sale was a fraud on Saunders, yet there was no evidence-that the mortgagees or Ryan knew of Brewer’s breach of faith. Therefore, before the plaintiff could maintain the action, it was necessary to make a proper demand for the possession of the goods. Hovey v. Bromley, 85 Hun, 540; 67 St. Rep. 147; Goodwin v. Wertheimer, 99 N. Y. 149. It was shown that the property was, moved from the Eldridge House by the mortgagees to the warehouse of one of them, and hence, when the demand was made of Ryan, was in the actual possession of the mortgagees. It does-not appear that the furniture was at that time even in the custody of Ryan. In Goodwin v. Wertheimer, supra,— also an action of replevin,—the goods were demanded of an agent in charge of them. Andrews, J., in his opinion, says:

“ The refusal of a servant to deliver goods intrusted to him by his master, on a demand by a stranger, is not sufficient evidence to maintain replevin against the servant, nor against the master, when a demand and refusal is necessary to make the possession of the defendant tortious.”

It will be observed that in the case cited the servant or agent had the actual custody of the property sought to be recovered, while in the case under consideration, as far as the evidence discloses, the property remained in the warehouse, and in the actual possession and custody of the mortgagees. Hence, there was no-sufficient demand of the goods to show an unlawful detention thereof by Eyan or the mortgagees, or to entitle the plaintiff to maintain the action. It was not shown that the defendant was ever in the possession of the furniture in question. As we have seen, it was moved by the mortgagees to their warehouse, and, at the time of the demand and sale, was at that place, presumably in the actual possession and custody of the mortgagees. It is true one of the witnesses (Converse) testified that the defendant, at the time he replevied the property, was in possession of the goods in question; but on cross-examination he said;

“I meant, when I said I found the goods in the possession of Thomas Eyan when I served the second papers on him, that they had not been disturbed,—they were in the same place.”

Such testimony did not show any legal possession by Eyan of the property. There was also evidence of a demand on Eyan on behalf of the plaintiff, and failure to deliver the goods; but such evidence was unimportant, unless Eyan was shown to be in possession of them, unless he could deliver them. The property was bid in by one of the mortgagees. The defendant testified that he-delivered -it to the purchaser, but the notice of sale under which he assumed to act, and the evidence, showed that he was acting as a mere agent and auctioneer for the mortgagees; -and, when he thus testified, he must be understood to have meant that he made such delivery as .such agent. When the plaintiff made the demand of Eyan, the latter could not surrender property not in his possession or custody, but in the actual possession and custody of the mortgagees. Hence an action based upon his unlawful detention thereof could not be maintained. See Mount v. Derick, 5 Hill, 455; McDougall v. Travis, 24 Hun, 590; Mires v. Solebay, 2 Mod. 242; Alexander v. Southey, 5 Barn. & Ald. 247; Welton v. Holmes, 26 Wkly. Dig. 24; McClellan v. Wyatt, 26 Abb. N. C. 144; 34 St. Rep. 55. The cases cited do not conflict with principles established in Spraights v. Hawley, 39 N. Y. 441; Boyce v. Brockway, 31 N.Y. 490; Knapp v. Smith, 27 N.Y. 277; Allen v. Crary. 10 Wend, 349; and like cases. An auctioneer may become liable to an action of replevin, if he is at the same time a bailee, as in the case of Spraights v. Hawley, supra; or if he assume to exercise an unlawful direction or control of the property of another, as in Allen v. Crary, Knapp v. Smith, and Boyce v. Brockway, supra. But in this case the defendant never exercised, or assumed to exercise, any dominion or control over- the property in question. It remained in the actual possession of his principals,, and the only connection defendant had with it was as their agent.. Ryan did not advertise the property for sale. The mortgagees did that, Ryan being merely their agent or servant.

I think, therefore, the trial court made the proper disposition of the case, and that thé judgment should be affirmed, with costs.  