#### John W. Hazlett, Appellant, *v.*The Hamilton Storage & Warehouse Co., Respondent.

(Supreme Court, Appellate Term,

June, 1905.)

Chattel mortgage — Title of mortgagee on default — Replevin — Parties defendant — Warehouseman as defendant — L. igo2, ch. 8o8 — Pleading exemption.

It is well settled that when a chattel mortgagor makes default in the payment of the sum due under the mortgage, the mortgagee becomes the sole owner of the chattels and entitled to their immediate possession.

There is no defect of parties in a replevin action because third persons, not having actual possession of the chattels but who may have claims thereto, are not made parties defendant.

Under the statute (L. 1902, eh. 808) providing that a warehouseman shall not be made a defendant in an action for replevin if he shall have made known to the claimant the name and address of the depositor or holder of the warehouse receipt, the warehouseman as defendant in such action must plead his exemption.

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

Albert I. Sire, for appellant.

N. J. O’Connell, for respondent

Scott, J.

The plaintiff sues in replevin to recover certain chattels now in possession of defendant. The complaint sets forth the execution and delivery by one Mary ,PBigelow, of a chattel mortgage which was payable on demand, and was duly filed. That on a certain date plaintiff caused a notice to be served upon the mortgagor demanding payment of the debt for which the mortgage was given, and informing her that if the debt was not paid within thirty days plaintiff would exercise the power of sale given him by the saortgage and take possession of the chattels covered thereby. That before the expiration of said notice the said mortgagor, *661by her brother, caused the chattels to be deposited on storage in the defendant’s warehouse, in her brother’s name, or in the name of some person other than the mortgagor. That prior to the commencement of the action and after said thirty days’ notice plaintiff notified defendant of his claim to the possession of the chattels and demanded the possession thereof, duly tendering the amount of the storage charges thereon. To this complaint the defendant demurs on two grounds: First, that there is a defect of parties defendant in that neither the alleged mortgagor nor the depositor is made a party to the action; and, second, that the complaint does not state facts sufficient to constitute a cause of action. In support of the first ground of demurrer defendant relies upon Fishel v. Hamilton Storage Co., 42 Misc. Rep. 532. That action, however, was not an action in replevin like the present, but an action to foreclose a lien created by a chattel mortgage. The two forms of action are quite dissimilar, seek different relief, and are governed by different rules. It is well settled that when the mortgagor in a chattel mortgage makes default in the payment of the sum due as required by the mortgage, the mortgagee becomes the absolute owner of the chattels and entitled to the immediate possession thereof. Baumann v. Cornez, 15 Daly, 450 ; Leadbetter v. Leadbetter, 125 N. Y. 290. And he is entitled to assume possession at once, taking it from any one who holds the chattels by any title subordinate to his mortgagor. For the purpose of assuming possession replevin is an appropriate form of action, and no issue is involved therein except the question as to the plaintiff’s right of possession. It is not incumbent upon the plaintiff in such an action to join any person, except the one who actually witholds possession; the interposition of the claims of third persons who dispute plaintiff’s right of possession being otherwise provided for by statute. There is no defect in parties, therefore, in a replevin action, because the plaintiff does not join as defendants third persons, not having actual possession of the chattels, who may, however, have claims thereto. The holder of a chattel mortgage may, however, resort to another remedy. He may sue to foreclose his lien, and thus cut off the equity *662of redemption. Such Yus the form of action in Fishel v. Hamilton Storage Warehouse Co., *supra,*and in such an action, since one of its purposes is to foreclose the mortgagor’s equity of redemption, it is apparent that' the mortgagor is a necessary party. The plaintiff in the case cited was forced to bring the action in the form he did under section 139 of the Municipal Court Act, for his mortgage was given to secure the purchase money of the chattels mortgaged. It does not appear that the mortgage involved in this action was a purchase-money mortgage, and the prohibition contained in the section cited does not, therefore, apply. The second ground of demurrer is sought to be sustained by a reference to chapter 608, Laws of 1902, an act apparently of doubtful constitutionality (Follett Wool Co. v. Albany Terminal Warehouse Co., 61 App. Div. 296), but it is not necessary to discuss that question here. So far as concerns the claimant of a chattel, other than the depositor or holder of the warehouse receipt, the act provides that the warehouseman shall not be made defendant in an action for replevin or conversion if he shall have made known to the claimant the name and address of the depositor. Even if we are to assume the act to be valid) it is apparent that the warehouseman must set forth the fact establishing his exemption from suit by way of answer. He is liable to action unless he has given the notice. That is an affirmative fact to be pleaded, and it is no part of the plaintiff’s duty to negative it in his complaint. It follows, therefore, that the demurrer should have been overruled.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and answer over within six days upon payment of costs.

Dugbo and MacLea% JJ., concur.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer ap.d answer over within six days upon payment of costs.