Opinion
June 3, 1926.
Appeal from the Municipal Court, Queens, Second District.
Benjamin Burrows, for the appellant.
Emanuel Bloch, for the respondent.
Present, CROPSEY, MacCRATE and LEWIS, JJ.
Judgment unanimously reversed on the law and new trial granted, with thirty dollars costs to the appellant to abide the event. It was error to direct a verdict. On the evidence, there were questions of fact for the jury whether the defendant was not entitled to hold possession for the unpaid purchase price. The defendant denied that the plaintiff had tendered the certified check and likewise denied that any credit was to be allowed for the sale of the property claimed to be owned by the plaintiff. Until the purchase price was paid or tender thereof made, the defendant had a lien. (Pers. Prop. Law, § 134, added by Laws of 1911, chap. 571.) The evidence shows that three items of the original number claimed to have been bought by the plaintiff were not in the possession of the plaintiff when he brought suit. As to those three articles, if the purchase price were duly tendered, the plaintiff had a right to bring replevin if plaintiff was the owner thereof. It was error not to let the jury pass on the question of whether this plaintiff or the brother of the plaintiff purchased the property from the defendant. The jury might have found that the brother owned the property and not the plaintiff. If the jury did so, there could be no recovery by this plaintiff. When the auctioneer struck down the goods, title passed to the buyer, but until the goods were paid for possession thereof could be maintained by the seller. As to the goods actually in the possession of the plaintiff, there was no right of replevin. Replevin is for the purpose of getting possession from the defendant. When the plaintiff has such possession, there is no basis for the action. ( Sinnott v. Feiock, 165 N.Y. 444, 450; Lathrop v. Cook, 14 Maine, 414, 416; Hickey v. Hinsdale, 12 Mich. 99, 100; Calnan v. Stern, 153 Mass. 413; Mahr v. Livingstone, 55 Misc. 133; Christie v. Corbett, 34 How. Pr. 19.)
It was not error to refuse to receive in evidence the summons and complaint in the action brought by Gluck against this defendant. There was no error in refusing to dismiss because the brother was not joined as party plaintiff. If the brother owned the property jointly with the plaintiff, defendant waived the defect in parties plaintiff by failing to move under rule 102 of the Rules of Civil Practice. The court, however, has power at trial to add the brother as a party plaintiff. (See Civ. Prac. Act, § 192; Mun. Ct. Code, § 27.)