
    Gardner H. Wheeler, as Receiver, etc., App’lt, v. Jewell Vanderveer, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    4. Replevin — When lies.
    In order to maintain replevin, the plaintiff must show that he is entitled to the possession of the property at the commencement of the action.
    2. Same — Presumption.
    The presumption of tille in defendant, arising from possession, is not overcome by proof of title in a third person six months prior to the appointment of the latter’s receiver in supplementary proceedings.
    
      Appeal from a judgment of the county court, affirming a judgment rendered by the municipal' court of the city of Syracuse.
    
      II. E. Miller, for app’lt; Giles B. Everson, for resp’t.
   Martin, J.

— Upon the trial the plaintiff wás nonsuited. The , grounds upon which the plaintiff now seeks to reverse the judgment herein are twofold: (1) That the court erred in rejecting evidence offered by him as to the price paid for the property in question ; and (2) that the court erred in granting the defendant’s motion for a nonsuit.

As evidence of the price paid for the property could have been material only upon the question of damages, the rulings of the court in rejecting it, if erroneous, were harmless, if the defendant’s motion for a nonsuit was properly granted. If the nonsuit was improperly "’’anted, the judgment must be reversed for that reason, and consequently it is unnecessary to discuss or determine the-question of the propriety of the rulings of the trial court in rejecting that evidence.

The action was replevin, and was to recover certain personal property, which it is claimed belonged to Alfred E. Crane, and to which the plaintiff claimed to have acquired title as receiver appointed in proceedings supplementary to execution, under a judgin' recovered against the. judgment debtor, Alfred E. Crane. Thu" ’> plaintiff was duly appointed as such receiver there is no '<r-.’ha" the judgment debtor was once the owner of the m; ir cuestión is equally clear. But that he was such owner "tf 'il.i when the proceedings supplementary to the execution wpm commenced was not proved. The most' that can be said of -he phiimifl’e proof is that it tended to show that, at least six months before the proceedings which resulted in his appointment verc instituted, the judgment debtor was the owner of at least a oorticn of the property in question. On the other hand,- the evidence drawn out on the cross-examination of the plaintiff’s witnesses tended to show that at the time such proceedings wen-instituted, and when the plaintiff was appointed receiver, the judgment debto” did not have the title to, the possession of, or the right to the possession of, such property. A careful reading of all the evidence giver, upon the trial has led us to the conclusion that it was insufficient to sustain the plaintiff’s cause of action, and that the trial court was justified in nonsuiting him.

The purpose of the action of replevin is the recovery of specific personal property. While the action is of the same general class as trespass and trover, it is a possessory action, is partly in rem. and is unlike either. To maintain the action, the plaintiff mu.-show that he is entitled to the possession of the property a; commencement of the action. Austin v. Wauful, 86 St. Rep. 7 Wood v. Orser, 25 N. Y. 348; Redman v. Hendrinks, 3 N. Y. Supr. Ct. 32; Duncan v. Brennan, 83 N. Y. 487; Thompson v. St. Nicholas Nat. Bank, 113 id. 325, 333; 22 Si Rep. 927. This the plaintiff failed to do. It is obvious that the defendant had possession of the property when this action was commenced. This was presumptive evidence of liis ownership, Wickes v. Adirondack Co., 2 Hun, 112; Fish v. Skut, 21 Barb. 333; 1 Greenl. Ev. § 34, and cases cited in note. This' presumption was not overcome by the plaintiff’s evidence. Moreover, the proof tended to show that the defendant’s title had been transferred before the judgment creditor had obtained his judgment.

Judgment of the county court affirmed, with costs.

All concur.  