Opinion
January 26, 1912.
William F. O'Connor, for the appellant.
Elias A. Deutschmann, for the respondent.
In October, 1911, plaintiff began this action to recover the possession of a certain power boat, of the value of $425, alleged to be wrongfully detained from him by defendant, together with damages for the detention thereof.
"A defendant against whom * * * an action to recover a chattel is pending, may, at any time before answer, upon proof, by affidavit, that a person, not a party to the action, makes a demand against him for the same * * * property, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his * * * delivering the possession of the property, or its value, to such person as the court directs." (Code Civ. Proc. § 820.) From an order of the County Court of Kings county substituting William Kolmel as defendant in this action, and discharging the present defendant from liability to either plaintiff or said Kolmel, plaintiff appeals.
The order cannot be sustained, for three reasons: First, no notice was given to said Kolmel of this application. This is essential. ( Bullowa v. Provident Life Trust Co., 125 App. Div. 545. ) The order contains a recital that it was made upon Kolmel's consent. There is no evidence thereof. Second, the affidavit fails to show that Kolmel's claim to the boat is "without collusion." There is neither express assertion to that effect nor a statement of facts and circumstances from which such conclusion can be reasonably drawn. This is also essential. ( Boskowitz v. Boskowitz, 124 App. Div. 849; Helene v. Corn Exchange Bank, 96 id. 392.) Third, the order contains no provision for the delivery of the property or of its value by defendant to such person as the court directs. The moving affidavit asserts that Kolmel, and not defendant, has possession of the boat, and has had since August 2, 1911. Direction for the actual delivery thereof could not, therefore, be given. But an action of replevin will lie against one who has voluntarily and wrongfully transferred the possession of property of another which, upon demand, he is bound to deliver. ( Sinnott v. Feiock, 165 N.Y. 444; Nichols v. Michael, 23 id. 264; Barnett v. Selling, 70 id. 492.) In such case the alternative provision of the statute, that the value of the property which is the subject of the litigation must be delivered to such person as the court directs, becomes applicable. This defect is likewise fatal. ( Mason v. Rice, 85 App. Div. 315.)
The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
JENKS, P.J., HIRSCHBERG, WOODWARD and RICH, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to an application to the County Court to renew the motion upon sufficient papers and upon such terms as may be just.