
    Fred M. Libby, Respondent, v. Josephine Libby, Appellant.
    
      A receiver— when he will not be appointed in an action to recover property alleged to have been taken by a wife from, her husband.
    
    Where upon an appeal, from an order appointing a receiver pendente lite, made in an action brought by a. husband against his wife to recover possession of certain property which he claimed that she had wrongfully taken and detained from him, it appeared that it was not certain whether the property had not been removed beyond the jurisdiction of the court, the Appellate Division considered that the order should be reversed; that if the property was within the State the plaintiff should be relegated to his remedy by a writ of replevin, or by an injunction to prevent the defendant from disposing of the property, or removing it from the State of Hew York.
    
      Qucere, whether a receiver can be appointed in a replevin action.
    Appeal by the defendant, Josephine Libby, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 9th day of April, 1901, appointing a receiver pendente lite of the personal, property sought to be recovered in the action.
    
      
      William P. Burr, for the appellant.
    
      W. T. Read, for the respondent.
   Laughlin, J.:

This action was commenced on or subsequent to the 8th day of February, 1900, to recover the possession of certain personal property consisting of bonds, stocks, notes, jewelry and cash which it is alleged in the complaint are owned by the plaintiff, and in the month of September, 1897, were wrongfully taken and have been since that time wrongfully detained by the defendant.

The property was in the possession of the defendant and within the jurisdiction of the court, but no writ of replevin has been issued. The parties are husband and wife. Although not legally separated, they had not lived together for more than a year prior to the commencement of the action.

The answer puts in issue the allegations of the complaint concerning the husband’s ownership and right to possession of the property.

The plaintiff’s affidavit, read on the motion, showed that at the time the defendant took possession of the property the parties were living together as husband and wife, and she “ had equal privilege with the plaintiff to handle, inspect and see ” the securities and property; that, since taking the property, defendant has collected the interest coupons attached to the bonds and has offered some of the securities, which are transferable by bearer, for sale; that a paroi agrees ment for a settlement of the action was made between the parties by which “ the smaller part of the property ” was to be returned to the plaintiff; that defendant, instead of keeping an appointment to meet plaintiff and consummate the said agreement, on the 4th day of March, 1901, departed from her residence two days before without telling her sister, with whom she was living, where she was going, and has not returned; that he believes she has left the State unexpectedly and has taken the property in question with her; that he Was unable to furnish a sufficient bond to replevy the property. A deposition of the defendant’s sister, taken on the 6th • day of March, 1901, pursuant to an order made six months before authorizing it to be taken for use on a motion for the appointment of a receiver, showed that when the defendant went away four days before, she took a small valise, but left her trunk and wearing apparel; that defendant kept her papers in a box in the Franklin Trust Company’s vault, but the witness had no knowledge on the the subject as to whether they had been removed or were still there.

An opposing affidavit made by the attorney of the defendant showed that his client informed him that she was absent from the State temporarily only visiting in Chicago, and expected to return shortly.

If the property has been removed beyond the jurisdiction of the ■State, as to which there is no competent evidence, the order appointing the receiver will be ineffectual to give him possession. If it be still within the State, the plaintiff has an adequate legal remedy by replevin or an injunction might be obtained to prevent the defendant from taking the property from the safety vault or disposing of it or removing it from the State.

Assuming, without deciding, that a receiver may be appointed in some stage of a replevin action (Code Civ. Proc. § 713; Cobbey Replevin [2d ed.], § 707; Hellebush v. Blake, 119 Ind. 349; Dennistoun v. Draper, 5 Blatchf. 336), before the defendant, who is in possession of the property under a claim of ownership, is burdened, in the event of succeeding, with the expenses of a receivership, the plaintiff should show clearly the necessity of a receivership to preserve the property to answer the judgment, and that he has exhausted all ■other appropriate available remedies, or that they are inadequate, and especially in an action by a husband against his wife. (Beach Receivers [Alderson’s ed.], 65; Adee v. Bigler, 81 N. Y. 349; Avery v. Empire Woolen Co., 82 id. 582; Starr v. Rathbun, 1 Barb. 70; Jones v. Smith, 40 Fed. Rep. 314.)

The case as presented did not justify the appointment of a receiver. The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Patterson, Ingraham and Hatch, JJ., concurred.

Yan Brunt, P. J.:

I concur in result. I do not think that a receiver can be appointed in an action of replevin.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  