#### The Sather Banking Company, Plaintiff, *v.*Louis Hartwig, et al., Defendants.

(Supreme Court, New York Trial Term,

March, 1898.)

1. Replevin — Title by delivery of the bill of lading upon a discount of a draft against consigned goods.

The delivery of a bill of lading of goods to a bank by a consignor, as collateral, 'upon its discount of his draft upon the consignee, vests in the bank a title to the goods which can be divested only by the payment of the draft , .

2. Same — Seizure under attachments against consignors — Measure of damages.

Where such a draft has been neither accepted nor paid, third persons who intercept and levy upon the goods under attachments against the consignors, and who subsequently procure the sale of the goods by the sheriff and also .indemnify him in the premises! are liable to the bank in an action of replevin and may properly be charged therein with the 'amount which the goods brought at the sheriff's sale, which was well attended by dealers.

*90Action of replevin to recover possession of certain almonds.

Van Duzer & Taylor, for plaintiff.

U. W. Tompkins, for defendants.

McAdam, J.

The action is in replevin to recover the possession of 329 sacks of almonds shipped from California to New York, December 14, 1895, by Porter Brothers & Co., a San Erancisco firm,, on car No. 3806 of the Sunset Boute,. Southern Pacific Co. On the day of the shipment, Porter Brothers *&*Oo. drew their draft on Thos. Boberts & Co., of Philadelphia, Pa., the consignees, for $1,458.33, payable to the order of the plaintiff, a California banking institution, and the plaintiff discounted the draft, taking as collateral security the bill of lading for the goods. The draft was neither accepted nor paid; whereupon the plaintiff made claim for the goods, but failed to obtain them because- Hartwig and Boberts, two of the defendants, had intercepted them on their arrival at New York, and caused them to be seized by the sheriff on attachments which they procured against Porter Brothers *&*Co., the consignors. The .said defendants, by virtue ■ of the attachments and an order of the court permitting the sale of the goods as perishable property, caused the almonds to be sold by the sheriff; the two other defendants becoming indemnitors of the sheriff, and thereby mailing themselves liable for the wrong. Herring v. Hoppock, 15 N. Y. 409; Dyett v. Hyman, 129 id. 351; Cow. Tr., §§ 566, 765; Van Dewater v. Gear, 21 App. Div. 201. If, pre'vious to the seizure, title to the property had passed to- the plaintiff, the levy and. sale under the attachments were wrongful. The delivery of the bill of lading to the plaintiff, for the purpose of securing the payment of .the draft drawn by the consignors-upon the consignees, and which the plaintiff -discounted, was- sufficient to pass the title to the almonds to the plaintiff, subject to be" divested only by the payment of the draft. Cayuga N. Bank v. Daniels, 47 N. Y. 631; Bank of Rochester v. Jones, 4 id. 497; Gibson v. Stevens, 5 How. (U. S.) 384; First N. Bank v. N. Y. Cent. & H. R. R. R. Co., 85 Hun, 160; 4 Am. *&*Eng. Ency. of L. (2d ed.) 522, 545. The defendants’ contention that they are not liable without proof of a personal direction to levy and sell is untenable. Ford v. Williams, 13 N. Y. 577. The giving of the bond of indemnity and the other acts done were for the benefit of the attaching creditors, who accepted the proceeds of sale and approved of what had been done. Cow. Tr., §§ 566, 765; 2 Hilliard on Torts *91(2d ed.), 312, 313. The sheriff’s sale was well attended, and there was competition among dealers. The property brought thereat $1,560.43, a sum exceeding the amount of the draft, which was for $1,458.33, and this latter amount as against- the defendants will be accepted as the fair market value of the goods. Gill v. McNamee, 42 N. Y. 45 Dixon v. Buck, 42 Barb. 70; Campbell v. Woodworth, 20 N. Y. 499; Parmenter v. Fitzpatrick, 135 id. 190; Crounse v. Fitch, 1 Abb. Ct. App. Dec. 475. The plaintiff is entitled to judgment for the possession of the property claimed, assessing its value at $1,458.33, with interest. See Barnett v. Selling, 70 N. Y. 492, 494.

Judgment for plaintiff.