#### Nathaniel Whitman et al., Plaintiffs, *v.*Jacob N. Kleimann et al., Defendants.

(Supreme Court, New York Special Term,

September, 1898.)

Warehouseman — Duty of, where goods in the warehouse aré sought to be replevined in an action against defendants not the owners thereof.

In an action of replevin it appeared that the plaintiffs therein, claiming to be the.owners of goods which had. been stored in a ware-, house by the defendants in that action, had served upon the warehouse company the notice required by chapter 633 of the Laws of 1895, setting forth the claim of the plaintiffs and the name of the court where the action was pending, and had thereafter obtained an *ex parte*order directing the warehouse company, upon payment of its lawful charges, to deliver the goods to the sheriff, by whom they were subsequently delivered to the plaintiffs, pursuant to the requirements of section 1706 of the Code of Civil Procedure.

A third person, not a party to. the .action in replevin, claiming the goods by virtue of a transfer from the defendants in that action, aud to whom the warehouse company had, prior tó the bringing of . the *555replevin suit, issued a warehouse certificate covering such goods, moved to set aside the *ex parte*order, and it was Held, that, as to such third party, the *ex parte*order directing the delivery of the goods to the sheriff was void, and afforded no protection to the warehouse company, in delivering his property thereunder, as the order only required the delivery of property belonging to the defendants in the action of'replevin. That it was the duty of such, company to have advised the third . party of the existence of such order.

Motion to set aside *ex parte*order directing delivery over by warehouse company of property replevied by the sheriff.

M. Marks and E. Otterbourg, for motion.

E. T. Goldberg, for plaintiff.

Wm. H. Gibson, for warehouse company.

L. M. White, for receiver of warehouse company.

B. S. Stone, for sheriff.

McAdam, J.

„The plaintiffs undertook to replevin certain goods claimed to be owned by them, which had been stored by the defendants in the warehouse kept by the F. 0. Linde Company. Plaintiffs served upon the warehouse company the notice required by ' chapter 633. of the Laws of 1895, entitled “An act to regulate and determine the procedure in actions and proceedings relating to the title to or possession of goods, wares and merchandise on storage in * warehouses.” The plaintiffs thereafter and on August 19, 1898,. obtained an *ex parte*order directing the warehouse company up on-payment of its lawful charges to deliver to the sheriff the chattels “ stored with them by the defendants.” The goods were thereupon delivered, to the sheriff as the property of the defendants, and after the justification of plaintiffs’ sureties,, the sheriff delivered the goods to the plaintiffs pursuant to the requirement of section 1706; of the Code of Civil Procedure. One Einstein, a third person not a party to the action, how moves to set aside the order directing the delivery to the sheriff, on the ground that the property delivered became his,prior to the issuing of the writ, to-wit, on March 10¿. *5561898, by virtue of a transfer from the defendants. Kleimann and Yohn, as security for a loan'of $5,000, on which transfer a warehouse certificate was issued to him on that day by the'warehouse company, acknowledging that said company held the goods for. Einstein’s account, and that they were deliverable’ only to him or upon his indorsement and surrender of the receipt. The act of 1895, chapter 633, was intended to protect warehousemen from actions resulting from conflicting questions of title,- respecting goods in their care, to. which they made no. claim other than for storage, by requiring the different claimants to establish their title by judicial proceedings in some form sufficient to protect the warehouseman, before requiring him to deliver up the property, the warehouseman thus favored being looked upon as an indifferent stakeholder requiring legislative protection. This was the" supposed mischief against which the previous law did not provide, and the defect the act in question was intended to remedy. Assuming (but only for present purposes) that the act in its entirety is one affecting procedure without impairing the right of property, leaving the injured party a substantial remedy according to the course of justice, and for that reason free from constitutional objection, the next inquiry is, whether the act extends beyond ordinary actions of replevin or trover, and reaches the provisional remedy given by.the Code for immediate possession when that is invoked by the plaintiff. The Code (§ 1700) requires that if the chattel be . found in possession of the defendant or his agent, the sheriff must forthwith replevin it “ by taking it into his possession,” a right the sheriff must enforce (Freeman on Executions, §§ 468, 473; Keith v. Johnson, 25 Am. Dec. 167; Howe v. Oyer, 50 Hun, 559), leav- . ing adverse claimants to seek protection under the Code provisions which are ample for their protection. When the sheriff replevies^ property it passes into the custody of the law (Commerce Exchange Nat. Bank v. Blye, 123 N. Y. 132), and the sheriff must retain it in his possession until the person entitled to the possession thereof is ascertained as prescribed by the Code, and then it must be delivéred to that person (§ 1702). On the other hand, the act of 1895 Contemplates an uninterrupted continuance of possession by the warehouseman, with an accumulation of charges and perhaps a depreciation of value or loss of use until the court is in a position to determine which claimant is entitled to the property. The innovation intended by the act of 1895 was the protection of ware-housemen, and if omitted as parties defendant and their storage *557charges are paid, the purpose of the act would seem to he satisfied without otherwise impairing the utility or harmony of the Code-system of procedure which for so many years has proved satisfactory to litigants. If the warehouseman is not the agent of the defendants named in the writ he may decline to respect the authority of the sheriff under it (Otis v. Williams, 70 N. Y. 208), so that even under the Code provisions (if the warehouseman is omitted as a party defendant as directed by the act of 1895) the. warehouseman may require his principal to be brought into the litigation before the property can be taken from his custody. Assuming, however, that the act of 1895 is constitutional and applies, the assumption on which the plaintiffs acted when they obtained the *ex parte*order directing the warehouse company to deliver the property to the sheriff, the order does not really prejudice Einstein, who was not a party to the action and had no notice of it. As to him the order is open to the objection that it tended to deprive him of his property without due- process of law. Cooley’s Const. Tim. (2d ed.) 352; Colon v. Lisk, 153 N. Y. 188; Schrauth v. Dry Dock Sav. Bank, 86 id. 390. BTor does the order in any manner protect the warehouse company, which must have known that the court could not by *ex parte*order determine a disputed question of ownership. It was the duty of that company to have .notified Einstein of the order, that he might have protected himself from it, for the company knew that it had issued to him a warehouse receipt acknowledging his ownership of the property.' The order, if attempted to be used to affect any property other than that of the defendants, was a nullity and might safely have been so regarded. It did not direct the delivery over of Einstein’s property, but goods stored by the defendants and called for by the writ of replevin, which were to be delivered to the sheriff in execution of the writ. The warehouse company delivered the property to the sheriff as the property to which the sheriff was entitled, and the plaintiffs’ sureties having justified, the sheriff delivered the property to the plaintiffs as required by section 1706 of the Code. The disputed question of title could be disposed of only after a judicial determination according to the course of the common law. The fact that Einstein claimed the goods and had a warehouse receipt for them, though known to the plaintiffs, was not disclosed in the. papers upon which the order was granted. The order was at first declined, and granted the next day on the personal assurance of the plaintiffs’ attorney that there was no substantial objec*558tion to delivery ever of the property, the order being formal only to satisfy the requirements of the act of 1895. The suppression óf the fact of Einstein’s claim-and the assurance of counsel amount to-, an imposition on the court, as on the facts that now appear the order. would not have been- made. Even if not binding on Einstein, if by means óf the order his property has been taken, he must be pro-' tected. The plaintiffs’ counsel, to show good faith, agreed on the-argument to stipulate to make Einstein a party defendant to the action and allow him to litigate therein his claim- to all or any of the property taken from the warehouse, and procure an undertaking by a surety company in the sum of $5,000^ conditioned, to* satisfy any judgment Einstein recovered therein. If thé plaintiffs, within five days, give such a stipulation and file such an-under, taking, the motion to vacate will be denied, and in default thereof,.' it will be granted., *t*

Ordered accordingly.