Opinion
April 4, 1949.
In an action to enforce the terms of an alleged trust agreement, and for incidental relief, plaintiffs issued a writ of replevin to the sheriff, requiring him to replevy certain specified bonds and articles of jewelry allegedly contained in a safe-deposit box maintained in the names of appellant, not a party to the action, and defendant Fannie Gats. It does not appear whether the safe-deposit box held the articles described in the requisition, but it did contain a sum of money which was claimed to be the proceeds of the bonds sought to be replevied, and which had allegedly been converted by said defendant. The writ of replevin was served on the safe-deposit company, and thereafter appellant moved for an order dismissing the writ and directing the company to permit her access to the safe-deposit box. The motion was denied, and the appeal is from the order, on reargument, denying the motion and directing the sheriff to open the box, inventory its contents, and take into his possession the entire contents of said box, subject to appellant's right to test her title thereto as provided in the Civil Practice Act. Order, on reargument, reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs, to the extent of vacating the writ of replevin. Appellant was a party aggrieved, within the purview of section 557 of the Civil Practice Act, and was entitled to appeal from the order. ( Hobart v. Hobart, 86 N.Y. 636; Posen v. Cowdin, 267 App. Div. 158; 6 Carmody on New York Pleading and Practice, § 63.) The writ of replevin must be vacated as there is no authority for its issuance in a purely equitable action to compel the performance of a trust. (Cf. Sager v. Blain, 44 N.Y. 445, 450; Civ. Prac. Act, § 1094.) The order was also erroneous in that it directed the sheriff to take into his possession articles not specified in the replevin requisition ( Bullis v. Montgomery, 50 N.Y. 352, 356; cf. Lehman v. Mayer, 8 App. Div. 311) from a safe-deposit box maintained by a defendant together with one not a party to the action. ( Matter of Ehrich v. Root, 134 App. Div. 432; Sanford v. Richardson, 176 App. Div. 199.) Carples v. Cumberland Coal Iron Co. ( 240 N.Y. 187) is not to the contrary. That case did not concern the question of the right to seize property under a writ of replevin; and the safe-deposit box there involved was leased solely to defendant. Nolan, P.J., Carswell, Adel, Wenzel and MacCrate, JJ., concur.