#### Carrie Boskowitz, Appellant, *v.*Adolph Boskowitz, Respondent.

First Department,

March 20, 1908.

Party—bringing in defendant — section 820, Code Civil Procedure — collusive claim against original defendant.

In an action of replevin to recover household goods claimed by the-’plaintiff to have been given to her by her husband and withheld by his grantee, the defendant is not entitled to bring in as a party defendant a third person in possession of some of the property, if the title thereto is conceded by the plaintiff. Under the circumstances the complaint should be ordered amended so as to omit the property to which plaintiff reliquishes her claim.

So, too, the administrator of the plaintiff’s husband should not be joined as a party defendant where there is no evidence that he made any claim to the property in suit until the defendant drew his attention to the matter, and it appears that the defendant collusively instigated the claim made by the administrator for the purpose of depriving the plaintiff of immediate possession. Section 820 of the Code of Civil Procedure only authorizes the substitution of a party as defendant, or the bringing in of an additional party defendant, where a demand has been made without collusion upon the original defendant by the parties sought to he substituted or brought in for the same debt or property. A defendant who by collusion induces another to lay claim to the property is not entitled to have him brought in as defendant.

Although the defendant grantee withholding the property was also the attorney at law for the administrator of the plaintiff’s husband, he cannot justify bis refusal to deliver the property upon the ground that although lmówing,of no adverse claim, he deemed it his professional duty to inform the administrator in order to see if he wished to assert a claim to it.

The defendant grantee withholding the property cannot bring in the donor’s administrator as a party defendant upon the theory that the gift was void as to creditors under section 7 of the Personal Property Law when it is not shown that the administrator has disaffirmed the transfer and there is no evidence that he has any ground upon which he could base an action to set it aside.

Appeal by the plaintiff, Carrie Boskowitz, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 26th day of February, 1908, granting the defendant’s motion that Jesse L. Boskowitz, as administrator, etc., of Ignatz Boskowitz, deceased, and Florence Boskowitz be joined as codefendants with the original defendant, Adolph Boskowitz, herein, and for directions with respect to the claims to be asserted herein and with respect to the possession, *850during the pendency of the action, of the property sought to be recovered herein.

*Charles L. Craig,*for the appellant.

*Harold Nathan" [Louis 8. Levy*with him on the brief], for the respondent. '

*Charles II. Stttdin,*for Florence Boskowitz.

*William Victor Goldberg,*for Jesse L. Boskowitz, as administrator, etc.

Laughlin, J.:

The action is in replevin, to recover certain personal property ' consisting of household goods, furniture and furnishings. All of the property not owned by plaintiff was formerly, owned by her husband, Ignatz Boskowitz. On the 7tli day of June, 1906, it was in the dwelling house on premises known as No. 32 "West Seventy-second street in the city of New York owned by him which were that day conveyed by him and his wife to the defendant. ■ Ignatz Boskowitz and his wife, who is the plaintiff, had occupied the ¡iremises as a private residence for many years and continued to reside there after the conveyance and until the thirteenth day of the same month, when they sailed for Europe, leaving the property in question in the house with the consent of the defendant who was Ignatz’s brother. Ignatz Boskowitz died abroad on the twenty- ■ sixth day of December thereafter. He, however, remained a resident of this State and on the 2d day of February, 1907, his son Jesse L. Boskowitz was duly appointed administrator of his estate by the Surrogate’s Court of the county of New York, his mother apparently having renounced in his favor. It is conceded that on the 12th day of June, 1906, the decedent signed and addressed a letter to the plaintiff jmrporting to make her a present of all of the personal property so left in the house No. 32 West Seventy-second street which did not already belong to her. The plaintiff claims that the letter was delivered to her and that she thereby acquired title to the property. The defendant makes no claim to any of the property, excepting one painting, entitled, “ Paying .Toll,” by Myer von Bremen, which he claims was given to him by the decedent on t]i§ game day that the letter wag written to the plaintiff *j*hit he *851says that he has no knowledge as to whether- the letter was delivered to the plaintiff and he also asserts that certain of the property belongs to decedent’s daughter Florence, and that the administrator of the estate of the decedent claims the rest. The defendant, therefore, prayed for an order permitting him to litigate the question as to the ownership of the picture and bringing in Florence Boskowitz and the administrator, and for directions with respect to the possession of the property pending the action.

The property which the defendant asserts belongs to Florence Boskowitz was in the front bedroom on the third floor, which for many years had been occupied by her. It appears that she claimed title to this property by gift from her father, and on the 15th day of June, 1906, a few days after her parents left, for Europe, she moved it out as her own. Her ownership thereof is now.conceded by the plaintiff in an affidavit presented in opposition to the motion. ..■There was no necessity, therefore, of bringing Florence in as a party defendant. She has the property and plaintiff waives all claim thereto and concedes.her ownership. The court should have ordered the complaint amended so as to omit the property which Florence removed.

We are also of opinion that the learned court erred in directing that the administrator be joined. There is no evidence that the administrator asserted to the defendant, who was in possession- of the property, any claim thereto until after the defendant drew the matter to his attention. On the record before us the defendant is in the position of having instigated the claim made by the administrator, and the inference is fairly warranted that the claim has been presented through collusion between him and the administrator for the purpose of depriving the plaintiff of the immediate possession of the property. It appears that plaintiff duly notified the defendant of her claim to the property under the letter from the decedent bearing date the 12th day of June, 1906, and he at first fully acknowledged her right and title and promised to deliver the property to her, and on his suggestion she indorsed on a copy of tile letter an authorization to him to deliver the property to the Manhattan Storage Warehouse Company. The defendant, instead of acting upon this authority and keeping his promise, apparent!y pregen ted the letter to the administrator who thereafter by a letter *852addressed to the defendant under date of February 13, 1907, referring to the demand made hy the plaintiff upon the defendant pursuant to the letter of June ' 12, 1906, asserted a bald claim to the property without denying the genuineness of the letter under which the plaintiff claimed or its delivery to her or stating any fact tending to impeach id, and thereupon the defendant notified the plaintiff that he declined to comply with her- demand to deliver the property. So far as appears no claim has been made upon the defendant by the administrator and he had no reason to doubt the title of the plaintiff. It does not even appear that the defendant asked whether the letter' was. delivered to the plaintiff by. the decedent or for any evidence on that point. Section 820 of the Code of Civil Procedure, only authorizes the substitution of a party as defendant or bringing in an additional party defendant where a demand has been made upon the original defendant hy the party sought to be substituted or brought in for the same debt or.property and without collusion. This does not contemplate that a defendant shall go about looking for sdme one to assert -a claim to the debt or property in question, but was intended for the protection of a defendant where a claim is apparently asserted against him, without collusion with him, and the nature of the claim or the facts presented render it hazardous for him to' admit the plaintiff’s demand and part with possession of the property and tend to show that lie would likely be thereby subjected to an action which it might he difficult for him to defend. *(Crane*v. McDonald, 118 N. Y. 654; *Merchant*v. *Northwestern Life Ins. Co.,*57 App. Div. 375; *Hasberg*v. *Moses,*81 id. 199; *Helene*v. *Corn Exchange Bank,*96 id. 392; *Hoffman House*v. *Manhattan Storage. Co.,*74 id. 476.) The defendant is not materially .aided by the fact that his firm were the. attorneys and counsel for the administrator. He could not as an individual having possession of this ’property justify his refusal to deliver it to her on the ground that, although he knew of no ■adverse claim to the property, he deemed it his professional duty to inform the administrator of the estate to see if he wished to assert a claim against it. The right of the defendant to the relief authorized by section 820 of the Code of Civil Procedure could not in these circumstances be affeptpcl by the claim thus induced on the. part of the administrator,

*853It is claimed that this property is worth about $35,000 and that the estate in the hands of the administrator is insufficient to pay the debts of the decedent; On these factsit is contended that the administrator might successfully assert that the gift was void as to the creditors of the decedent and that he might, under section 7 of the Personal Property Law (Laws of 1897, chap. 417), disaffirm the transfer upon the ground that it was void because it rendered the estate of the decedent insolvent. It is possible that a case might have been presented which would have warranted the court in making the order on that theory, but there is no evidence.that the administrator has attempted to disaffirm the transfer, nor is there any evidence that he has any groiind for such action. The administrator is the plaintiff’s son. It appears that the relations of the surviving members of this family have not been and are not harmonious and that there has been and continues to be serious friction between them. The administrator has been specially antagonistic to plaintiff, his mother. The fair inference is that the claim of .the administrator would not have been asserted if it had not been instigated by the defendant, and that it has been asserted Avithout any facts to warrant him in claiming the property as part of the ¿state of the decedent.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion to bring in the administrator of- Ignatz Boskowitz as a party defendant denied, and motion to bring in Florence Boskowitz' denied, without costs, upon the ground that it. appears by the affidavit of the plaintiff read in opposition to the motion that she concedes that her daughter Florence owned the chattels described in. Schedule A annexed to the complaint as being in the front bedroom on the third floor, viz., one chiffonnier, one table, one bed, one electric lamp, three chairs and three pictures, and upon the trial hereof will make no claim against the defendant therefor, or for the value thereof, or for damage thereto.

Ingbaham, Clabke, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motions denied as stated in opinion.