#### Ella M. Lynch, Appellant, *against*Charles A. St. John, Respondent.

(Decided December 2d, 1878.)

An order of interpleader made by the general term of the M arine Court, substituting another party in place of defendant and relieving the latter from all liability in the action, is a final determination, as it puts an end to the action brought and substitutes another in its place, and is therefore appealable to this court.

In actions of claim and delivery of personal property, the court cannot, by an order of interpleader, under the provisions of the old Code of Procedure, substitute in place of a defendant, who has possession of the property and refuses to deliver it to the sheriff, a third party who claims the property, but who has not made the affidavit of title and right of possession required by section 216 of that Code. ■

Personal property in the custody of the property-clerk of the police department of the city of New York under a public regulation may be taken in an action of claim and delivery brought by the rightful owner, and the fact that the clerk bolds the property in his official capacity does not justify him in disobeying the-process of the court. Property so held by the clerk may be regarded as in the custody of the law, where the possession and use of it may be necessary to secure the conviction of the person charged with having stolen it, but after his conviction or acquittal the property-clerk can have no claim to it as against the rightful owner.

*143Appeal from an order of the general term of the Marine Court of the city of New York, reversing an order made at a special term of that court, denying a motion of the defendant to interplead.

The action was brought to recover the possession of jewelry of plaintiff wrongfully detained by defendant, with damages for detention. The sheriff demanded the property and defendant refused to deliver it. Before answering, the defendant, upon his affidavit that Robert Simpson and William Simpson, forming the copartnership of Simpson & Co., claimed the property, and that the property was delivered to defendant "as property-clerk of the police department of the city of New York, moved that the Simpsons be substituted in his stead as defendants, and tha-t he be relieved from all liability on depositing the property with such person as the court should direct. Upon the motion the Simpsons appeared by their attorney, who read his own affidavit that the Simpsons claimed the right of possession of the property as bailees, the same having been pledged for a loan, and afterwards taken from their possession and given in charge of the defendant. The affidavit stated that the Simpsons consented to be substituted as defendants. The general term of the Marine Court, on reversing the order denying this motion, ordered that the substitution asked for be made; that the property be delivered to the sheriff, to be held by him subject to the order of the court; that the defendant be discharged from all further liability, and that plaintiff continue the action against the Simpsons.

*Morris S. Wise,*for appellant.

*Charles J. MaeLean,*for respondent.

Charles P. Daly, Chief Justice.

The order is appeal-able. It is a final determination of the action brought by the plaintiff against St. John, as it provides that upon the delivery of the property which St. John has in his charge to the sheriff he is to be discharged from all liability therefor *144to the plaintiff. In place of the present action it substitutes another action, which the plaintiff has not asked for, against other persons, Robert Simpson and William Simpson. It directs that they shall be substituted in the place of the defendant St. John, and it has been already held that such an order is appealable (*Wilson*v. Duncan, 11 Abb. Pr. 3).

The defendant St. John, upon his own motion, applied to the court below to substitute the Simpsons in his place as the defendants in the action, and to discharge him from liability on delivering the property, or its value, to such person as the court might direct. Judge McAdam, to whom the application was made, denied it upon the ground that it was the duty of the defendant to obey the process of the court; and that in respect to the application to interplead the Simpsons as defendants, the Code has provided what course is to be pursued, where the property sought to be replevied by the plaintiff is claimed by another person, and which necessarily excluded any other procedure by or on behalf of the Simpsons as claimants. The general term reversed the order denying the application, without giving any reason for the reversal, so that we are left entirely in the dark as to the ground upon which they decided that the application should have been granted, and made the order they directed to be entered.

This was an action of replevin, and the 3d subd. of the 122d sect., giving the court discretion to substitute for the defendant in the action a party who makes a claim against the defendant for the property, is necessarily to be interpreted in connection with the 216th section, which provides that if the property taken in an action of claim and delivery be claimed by any other person than the defendant, such person shall make an affidavit of his title to the property, and the right to the possession of it, stating the ground of such right and title, and serve the same upon the sheriff; after which, by the provisions of the section, it is made incumbent upon the plaintiff to indemnify the sheriff against such claim by the undertaking therein provided for. In this case, as appears from the affidavit of the sheriff, the defend*145ant refused to give up the property in obedience to the process, alleging no reason or excuse therefor. He afterwards applied for an order substituting the Simpsons as defendants in his place, and discharging him from all liability to either party, upon his delivering up the property to such person as the court should appoint; and, as I have said, Judge Me-Adam held that he had no right to impose any such condition ; that he must obey the process of the court, the same as any other party against whom an action is brought. His application to have the Simpsons interpleaded as defendants in his stead was made conjointly with them, as an attorney appeared on their behalf upon the motion, and made an affidavit to the effect that they claimed the right to hold the property as bailees ; that they consented to be interpleaded as defendants in the action; and that they demanded that the property, upon such interpleader, should be delivered up to them.

The decision of Judge McAdam, in my opinion, was • right. The proper course to be pursued in such a case was for the defendant to deliver up the property to the sheriff, in obedience to the process, and for the Simpsons to make the affidavit provided for by the 216th section and serve it upon the sheriff, who could deliver it to them, if not indemnified, after reasonable time, by the plaintiff. This was ■the regular and proper course of procedure, both on the part of the defendant St. John and of the claimants Simpsons.

Upon their interposing their claim to the property, as against the defendant, the defendant would be in a position to apply to the court to interplead them as defendants, and to be discharged himself from all further responsibility, the property then being in the custody of the sheriff, under the process in the action. No reasons, as I have said, have been given by the general term for the order which they made, substituting the Simpsons as defendants in place of the defendant St. John, and discharging the defendant from all responsibility upon delivering the property to the sheriff, who, by the order of the general term, is appointed to receive it, and to hold it subject to the further order of the court; and I *146refer to this omission, as it appears to me very plain that the defendant was not justified in disobeying the process of the court, lawfully issued, but was bound to obey it the same as any other public officer against whom an action is brought. If there was any reason why the property, for public purposes, should remain in his possession, his course was to apply to the court, which has authority to control its own process.

The ground taken by the respondent upon the appeal, in support of the decision of the general term, is, that the property is in the custody of the law; that the defendant is the property-clerk of the police department, and that this property—a diamond ring and a chain—was delivered to him,' as property-clerk, by a member of the police force of the city; that it is consequently in his custody in conformity with the provisions of the act of 1873 (ch. 335, §§ 61-66); and that no action of replevin will lie at the suit of any one to take it out of his possession. It has been long and well settled that replevin will not lie to recover property which is in the custody of the law, as where property found in the possession of the defendant in the execution is levied upon by the sheriff, in which case replevin cannot be brought to take the property out of the possession of the sheriff, for his possession is the possession of the law; and the remedy of any one aggrieved by the seizure of it is an action in the nature of an action of trespass, to recover damages for the wrongful taking of it. *(Hall*v. Tuttle, 2 Wend. 475, and the cases there cited.) If, however, it was taken out of the possession of one who was not the defendant in the execution, then replevin will lie to recover the possession of it; for not having been taken in accordance with the direction in the writ of execution, which was to take the property of the defendant, it is not in the custody of the law. *(Clark*v. *Skinner,*20 Johns. 465.) There, were reasons, which will be found stated in *Hall*v. *Tuttle (supra,*p. 477), why the action of replevin, before it was remodelled by the Revised Statutes, was not adapted as a remedv where property in the possession of the defendant *147in the execution Avas levied upon by the sheriff, or xvas dis-trained upon a conviction *(Rex*v. Monkhouse, Str. 1148), Avhich do not apply to the extent that the3r did previously to the action of replevin, or claim and delivery, in its present form, and Avhich do not apply at all to the possession Avhich tire property-clerk has of property under the act of 1872. It ma3r be that property in his possession might be regarded as in the custody of the law Avhere it is held upon the ground that the possession and use of it is, or may be, necessary to secure the conviction of the person charged with having stolen it; but after his conviction or acquittal, the property-clerk can have no claim to it as against the rightful OAvner. The act of 1873 (§ 62) provides that, where the property has been taken from the person arrested, and is alleged to have been feloniously obtained, and the magistrate is thereafter, upon investigation, satisfied that the person accused is innocent, and that the property rightfully belongs to him, that the magistrate may make a Avritten order that the property-clerk deliver it to the accxxsed person. This is the only provision in the act relating to the restitution of property in the custody of the property-clerk; and in such a case he may rightfully refuse to deliver it, unless upon the Avritten order, for Avhich provision is made in the act. But the position taken by the defendant here, in refusing to obey the process of the court in the replevin sixit, goes far beyond this. He claims that all property that comes into his possession is in the custody of the law; that he may refuse to give it xxp to the rightful owner; and that no action Avill lie to compel him to do so, which woxxld make him the perpetual custodian of all property which is in his possession as property-clerk, and leave it entirely dependent upon him whether the true OAvner thereof should get it or not—a position the preposterous nature of which is apparent-in the mere statement of it. All that was enacted ixi the provisions of the charter of 1873 was, that there should be a pi’operty-clerk, into whose custody should be given, and left, all property or money alleged or supposed to be feloniously taken, or which should be lost or abandoned; or which should be taken into the *148custody of any member of the police force, police justice, or criminal court, and that all such property should be particularly registered by the clerk in a book to be kept for that purpose. There is nothing in this public regulation in any way affecting the rights of the true owners of such property, or divesting them, even temporarily, of their right to claim it; nothing which takes away from them the right which every citizen has to bring his action to compel the delivery to him of property wrongfully withheld from him, or which leaves it to the property-clerk, as sole arbiter, to decide to whom the property belongs, and to give it or withhold it as he thinks proper. The right to property, and to its possession, is determined by the law, in a proper action brought for that purpose by the one who claims it; and the act of 1873 has not inaugurated any other or different course of procedure. If the property-clerk of the police department refuses to give up property which comes into his possession, alleged to be, or under the suspicion of having been, stolen, or as lost or abandoned, or which was received by him from a police officer, magistrate, or criminal court, upon the ground that he is entitled, by virtue of the authority conferred upon him by his office, to hold it against the claimant, he must answer in the action brought against him, the same as any other public officer against whom an action is brought. He must show his official right to hold it, the same as any other public officer who is sued for wrongfully withholding property from the alleged rightful owner ; and not as the defendant has done in this case, in the language of Judge McAdam, put the process of the court at defiance.

The order of the general term, therefore, should be reversed, leaving the defendant to obey the process which requires him to deliver up the property into the custody of the sheriff; and the Simpsons to make their affidavit, and serve it upon the sheriff, in the mode provided by the 216th section, if they make any claim to the property.

Vají Hoesen, J., concurred.

Order reversed with costs.