
    Fred Beck, Respondent, v. Eberhard Schneider, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1914.)
    Actions — defense in action to recover chattel — title to chattel.
    Appeal — from final judgment — motion for order bringing in other defendants — motion to vacate judgment taken by default — bonds.
    It is a defense to an action to recover a chattel that plaintiff had no title thereto and that it was delivered to defendant by one lawfully in possession for .the purpose of having it repaired.
    Where the record on appeal from a final judgment in an action to recover a chattel does not show that defendant demanded a return thereof, and no such demand is made in the answer, only a “ judgment for defendant ” which entitles him to statutory costs can be rendered. Such judgment, however, does not preclude defendant from thereafter bringing an action to regain possession of the chattel.
    Where defendant in a Municipal Court action to recover a chattel claims an interest in the property and other persons not parties have also an interest therein, a motion by defendant for an order bringing in the other claimants as co-defendants may be made “ at any time before answer ” as provided by section 187 of the Municipal Court Act.
    Where defendant made no such motion and a motion made by one claiming to be the rightful owner of the property, pursuant to section 115a of the Municipal Court Act, for leave to intervene is denied and no appeal is taken therefrom, the court is without authority to grant defendant’s motion at the trial to bring in the alleged rightful owner.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in an action in replevin on the ground that the court in awarding judgment in his favor failed to award possession of the property to the defendant.
    Phelan Beale, for appellant.
    Louis J. Rosett, for respondent.
   Page, J.

At the trial a motion was made by the defendant’s counsel to bring in one Solomon Heft as a party defendant on the ground that he was the rightful owner of the property replevied. The motion was properly denied. If the motion was made pursuant to section' 42 of the Municipal Court Act, as claimed, it was unauthorized for the reason that, while this section defines clearly who may be made parties defendant in the first instance, it makes no provision for bringing in parties on motion after an action has been commenced. That section has, therefore, no application to this case. The provisions of the Municipal Court Act which are applicable to this case are sections 187 and 115a. Section 187 allows a defendant, in an action to recover a chattel where he claims an interest in the property and other persons not parties have an interest therein, to apply to the court upon affidavits for an order joining the other claimants with him as co-defendants. The section specifically provides that this may be done “ at any time before answer.” Section 115a makes similar provisions for a motion for leave to intervene on behalf of one not a party to the action who claims the right to possession of the chattels, but this section provides that the motion must be made at least two days before the return day of the summons. The record does not show that any motion to interplead Heft was made by the defendant pursuant to section 187 and the motion of Heft pursuant to section 115a was made in Part I, before Justice Davis, and denied and no appeal therefrom taken. The court was therefore without authority to grant such a motion at the trial and it was properly denied. Heft is not a party to the action and has no standing therein. His notice of appeal from the judgment is therefore a nullity.

The only question properly involved in the appeal is the form of the judgment entered for the defendant. It was proved at the trial that the plaintiff had no title to the property replevied and that it was delivered to the defendant by one lawfully in possession, for the purpose of having it repaired. This was a perfect defense and the court properly rendered judgment for the defendant. The defendant-appellant claims that because he proved his possession to have been lawful and that he was entitled to immediate possession of the property the judgment should so provide and should fix the amount which the plaintiff must pay to him in lieu of delivery. Section 123 of the Municipal Court Act provides, however, that ‘ * * * If the defendant has demanded judgment for the return of a chattel, which was replevied, and afterwards delivered to the plaintiff * * * final judgment in his favor therefor must award to him possession thereof, with his damages, if any, and it must award to him the sum fixed as the value thereof; to be paid by the plaintiff if possession is not delivered to the defendant. ’ ’ In the case at bar the record does not show that the defendant has demanded a return of the chattel, and in his pleading no such demand appears. The court was, therefore, without authority to grant any other judgment than the one which it rendered, namely, “ Judgment for the defendant,” which entitled the defendant to his statutory costs only. Levy v. Hohweisner, 101 App. Div. 82; McCobb v. Christiansen, 28 Misc. Rep. 119; Knapp v. Schneider, 10 Daly, 218. This does not, however, preclude a subsequent action by the defendant to regain possession of the chattels.

The judgment should be affirmed, with costs.

Lehman and Whitaker, JJ., concur.

Judgment affirmed, with costs.  