#### Jacob Clark, Respondent,v. Albert Levine, as Marshal, Etc., Appellant.

(Supreme Court, Appellate Term,

January, 1901.)

Replevin — When an execution may he levied on property of a third party without subjecting the officer to an action for conversion.

A city marshal is protected in taking, under an execution1 in replevin, a chattel which is in the possession of a third party, unless the latter can show that he had title or right of possession superior to that of the execution creditor.

Where the creditor fails to show that, he cannot maintain conversion against the marshal.

Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, first district, borough of Manhattan.

Bullowa & Bullowa, for appellant.

L. Levy, for respondent.

*599
      *Per Curiam.*

This is an action for damages for the wrongful conversion of a wagon. The action was brought by the assignee of a corporation known as the Jersey Model Baking Company. The wagon had been the subject of an action in replevin by one Eleischmann against one Glasee. In that action, on March 9, 1899, a city marshal replevied this wagon, together with a horse and wagon, and delivered them to Eleischmann. Upon the trial of the action Eleischmann recovered judgment for return of the chattels. Upon appeal this judgment was reversed and a new trial granted, and upon the second trial Glasee was adjudged to be entitled to the possession of the chattels, and an execution in the form prescribed in such cases was issued to the defendant, who, finding the wagon in possession of the plaintiff’s assignor, took possession of it and delivered it to Glasee. The execution, in an action of replevin, must award to the successful party possession of the chattel, and in default of delivery thereof a sum of money equal to its value. In Hoffman v. Conner, 76 N. Y. 121, the duty of a sheriff under such an execution is defined: *“*Under such an execution if the sheriff finds the property in the possession of the person named therein, he must take it and deliver it as commanded. If he finds it in the possession of any other person, he must also take it, and deliver it as commanded, unless he can justify his refusal to do so by showing that such person has a title or right of possession superior to that of the party to whom he is commanded to deliver it, in which case he may make return according to the fact.” It follows that the sheriff or a marshal, who pursuant to the command of such an execution, does take a chattel from a third person, is safe against any action for damages, unless the third party can affirmatively show that he had title or right of possession superior to that of the execution creditor. The plaintiff here did not show such superior title or right of possession. He did not trace his assignor’s title even back to Eleischmann to whom the chattel had originally been delivered. All he showed was that the Jersey Model Baking Company had bought the wagon from one Rabe, who is described as a wagon maker. How it got into Rabe’s" possession does not appear. If the defendant had refused to take the wagon and had been sued for a false return by Glasee, he certainly could not have justified his refusal by a plea of superior title and right of possession in the Jersey Model Baking Company, if that plea *600bad been supported only by such unsatisfactory evidence as this plaintiff here relied upon. If the evidence would not be sufficient to justify a refusal to take this wagon, it certainly is not sufficient to justify an award of damages against the marshal for taking it.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Present: Tehax, P. J., Scott and Buceo, JJ,

Judgment reversed and new trial ordered, with costs to appellant to abide event.