#### Suzanna B. Ketchum, Respondent, *v.*George D. Prevost and Another, Appellants.

First Department,

July 10, 1913.

Custody of securities by court—interlocutory judgment directing delivery of securities by defendants to plaintiff— transfer of such securities to trust company until entry of final judgment—right of defendants to return of securities after reversal of judgment and dismissal of complaint — refusal to award judgment in favor of defendants on counterclaim.

Where, after the entry of an interlocutory judgment directing that certain securities in the possession of defendants be delivered to the plaintiff, the Special Term grants a stay, providing that the securities be deposited with a trust company and held by it until after the entry of final judgment, the defendants, after a reversal of the interlocutory judgment and the dismissal of the complaint, are entitled to an order directing the trust company to deliver the securities to them.

The defendants are entitled to be put in the same position that they were in when the action was commenced, and the fact that the court refused to award an affirmative judgment in their favor against the plaintiff on their counterclaim does not affect then1 right to the return of the securities.

Appeal by the defendants, George D. Prevost and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, denying the defendants’ motion for an *782order directing the delivery to them of certain securities deposited in the United States Trust Company, by order of the court.

*James A. Allen,*for the appellants.

*Barclay E. V. McCarty, for*the respondent.

Per Curiam:

By the interlocutory judgment in this action it was adjudged that certain securities known as lots 3 and 4 should be delivered by the defendants, in whose possession they were, to the plaintiff. To obtain a stay of the operation of that judgment the court at Special Term provided that these securities, included in lots 3 and 4, should he deposited in the United States Trust Company of New York, to be held until five days after the service upon the trust company of a certified copy of the final judgment to be entered in that action. The defendants, who had possession of these securities, under this order deposited them in the United States Trust Company. The defendants then appealed from the interlocutory judgment to this court, where the interlocutory judgment was reversed and the complaint dismissed. The court held that the plaintiff had established no right to the possession of these securities as against the defendants, and final judgment was entered upon that determination dismissing the complaint. Whereupon the defendants made a motion at Special Term asking that the trust company he directed to deliver these securities to the defendants. That motion was denied, and from the order denying it this appeal is taken.

These securities having been taken from the possession of the defendants by virtue of an interlocutory decree entered in this action and in pursuance of an order of the court pending an appeal from that interlocutory judgment, when that interlocutory judgment was reversed and the complaint in this action dismissed the defendants clearly were entitled to have the possession of these securities delivered to them. There is now no action pending, and no judgment or order which justifies the court in retaining possession of these securities as against the defendants, in whose possession they were when *783the action was commenced. The fact that this court refused to amend its order, and awarded an affirmative judgment in favor of the defendants against the plaintiff on their counterclaim, had no bearing at all upon this question, for, although the defendants were not entitled to an affirmative judgment to recover from the plaintiff any sum of money, the defendants were entitled to be put in the same position that they were in when the action was commenced and that involved the actual possession of these securities; and as the judgment mider which these securities were taken from the possession of the defendants has been reversed and the complaint dismissed, there is no justification for withholding from the defendants the possession of the securities.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present—Ingraham, P. J., Laughlin, Clarke, Dowling and Hotchkiss, JJ.

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