
    Charles Rosenberg et al., Pl’ffs, v. James A. Flack, Sheriff, Def't.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    1. Replevin — Discontinuance.
    The natural as well as the legal effect of the discontinuance of an action of replevin is the abandonment of the plaintiff’s claim and the surrender of the property to the defendant.
    
      2. Same — Parties.
    The sheriff having levied upon goods in the store of one B., the plaintiffs commenced actions to replevy and, the judgment creditors having failed to indemnify, an agreement was entered into by which the actions were discontinued, the goods remaining in the plaintiffs’ possession, On motion of the judgment debtor, who claimed to own said goods, the discontinuance was vacated and he was made a party defendant. Reld, no error; that B. had a right, under .§ 452 of the Code, to be made a party, and that the discontinuance was properly vacated, as the fact that a return of the property was dispensed with was decisive evidence that such discontinuance was the result of a collusive arrangement.
    Appeals in this, and three other actions, from an order setting aside a discontinuance and making John Brandt a defendant therein.
    
      Leonard Bronner, for app’lts; Abram Kling, for resp’t.
   Daniels, J.

Louis Tobias in the early part of November, 1889, recovered a judgment against John Brandt and issued an execution thereon to the sheriff of the county of New York, who levied upon the goods in the store of the debtor. After that levy and in the early part of the same month, the plaintiffs in these four actions commenced their suits in replevin to recover portions of the property levied upon by the sheriff. The judgment creditor was requested to indemnify the sheriff against those actions and he failed to do so, and by an agreement between the attorney for the sheriff and the attorney for the plaintiffs in these four actions they were discontinued, and the property appears to have remained in the possession of the plaintiffs in the four actions without any part of it having been returned to the sheriff as a consequence of the discontinuances. And an application was made on behalf of Brandt, the debtor in the execution, to be made a party to these actions for the purpose of contesting the title of the plaintiffs in them to the goods affected by the proceedings in replevin. This motion was. in the first instance made without any unreasonable delay, but it was denied because of the fact that Brandt himself had not by his own affidavit supported the application.

Leave, however, was reserved to the debtor to renew the motion, and that was done early in February, 1890, and resulted in the order from which.the appeal has been taken. The period was quite brief between the denial of the first motion and the making of the second, so much so as to exclude the imputation of want of diligence of the party in whose behalf it was made, and even the short delay which intervened is explained by the circumstance that it was desirable" to bring the second motion before the court held by the justice presiding when the first was made, on account •of his acquaintance with the facts acquired on the hearing and disposition of the first motion.

The proceedings by which the actions in replevin were discontinued were quite unusual, for the result of their discontinuance legally would be to place the property affected by the actions in replevin again in the custody of the sheriff under the execution. For no trial or investigation whatever took place in those actions determining the right of the respective plaintiffs to the recovery of the possession of the property in those actions. The natural as well as the legal effect of the discontinuance of the actions under these circumstances would be the abandonment of the claims made and the surrender of the property to the sheriff, in whose custody it was at the time when the proceedings in replevin were taken. And this was a statutory part of the action as it was regulated and provided for by the Revised Statutes; for, where the defendant recovered judgment by discontinuance, a part of that judgment necessarily was for the return of the goods and chattels, replevied to him, unless he elected to waive such return and take judgment.for the value of the property. 3 Rev. Stafc, 6th ed., p. 836, §§ 16 and 18. _

_ But these provisions appear to have been repealed by § 1, subd. 3 of chap. 245 of the Laws of 1880. But notwithstanding their repeal the principle maintained in their enactment is still applicable to litigation of this description, for it must necessarily follow when the action in replevin is discontinued that the claim of the plaintiff to the property affected by it will be abandoned. That this was not the effect given to the discontinuance of these .actions is a strong circumstance indicating that to have been collusive, and for the purpose of securing to the plaintiffs in the replevin suits an advantage over the judgment debtor which they were not entitled to claim, and in judgment of law could not be’ maintained.

The judgment debtor claims to be the owner of this property, and that the plaintiffs in the replevin suits were not entitled to-obtain its possession. The property affected by the actions in replevin was the subject of those actions, and by § 452 of the Code of .Civil Procedure, when this debtor applied to be made a party to those actions he was entitled to that relief. For this section has provided that where a person not a party to the action has an interest in the subject thereof, and makes application to the court, to be made a party, it must direct him to be brought in by the proper amendment. That is what the order did in. this case in addition to vacating the discontinuance of these actions in replevin. The part of the order making Brandt a party is supported by this section of the Code, and that part of it vacating the discontinuance of the actions by the circumstance that it was not authorized upon any other terms or conditions than the return of the property to the sheriff, and the fact of this having been dispensed with is decisive evidence of a collusive arrangement resulting in the discontinuance.

The court owed it to itself, as well as the party affected by that proceeding, to vacate the discontinuance and restore the actions to-such a condition as will enable Brandt to contest the plaintiffs’ right to recover the property in the actions of replevin. The order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.  