Beck v. Schneider , 145 N.Y.S. 1046 ( 1914 )

Page, J.

At the trial a motion was made by the defendant’s counsel to bring in one Solomon Heft as a party defendant on the ground that he was the rightful owner of the property replevied. The motion was properly denied. If the motion was made pursuant to section' 42 of the Municipal Court Act, as claimed, it was unauthorized for the reason that, while this section defines clearly who may be made parties defendant in the first instance, it makes no provision for bringing in parties on motion after an action has been commenced. That section has, therefore, no application to this case. The provisions of the Municipal Court Act which are applicable to this case are sections 187 and 115a. Section 187 allows a defendant, in an action to recover a chattel where he claims an interest in the property and other persons not parties have an interest therein, to apply to the court upon affidavits for an order joining the other claimants with him as co-defendants. The section specifically provides that this may be done “ at any time before answer.” Section 115a makes similar provisions for a motion for leave to intervene on behalf of one not a party to the action who claims the right to possession of the chattels, but this section provides that the motion must be made at least two days before the return day of the summons. The record does not show that any motion to interplead Heft was made by the defendant pursuant to section 187 and the motion of Heft pursuant to section 115a was made in Part I, before Justice Davis, and denied and no appeal therefrom taken. The court was therefore without authority to grant such a motion at the trial and it was properly denied. Heft is not a party to the action and has no standing therein. His notice of appeal from the judgment is therefore a nullity.

The only question properly involved in the appeal is the form of the judgment entered for the defendant. It was proved at the trial that the plaintiff had no title to the property replevied and that it was delivered to the defendant by one lawfully in possession, for the purpose of having it repaired. This was a perfect defense and the court properly rendered judgment for the defendant. The defendant-appellant claims that because he proved his possession to have been lawful and that he was entitled to immediate possession of the property the judgment should so provide and should fix the amount which the plaintiff must pay to him in lieu of delivery. Section 123 of the Municipal Court Act provides, however, that ‘ ‘ * * * If the defendant has demanded judgment for the return of a chattel, which was replevied, and afterwards delivered to the plaintiff * * * final judgment in his favor therefor must award to him possession thereof, with his damages, if any, and it must award to him the sum fixed as the value thereof; to be paid by the plaintiff if possession is not delivered to the defendant. ’ ’ In the case at bar the record does not show that the defendant has demanded a return of the chattel, and in his pleading no such demand appears. The court was, therefore, without authority to grant any other judgment than the one which it rendered, namely, “ Judgment for the defendant,” which entitled the defendant to his statutory costs only. Levy v. Hohweisner, 101 App. Div. 82; McCobb v. Christiansen, 28 Misc. Rep. 119; Knapp v. Schneider, 10 Daly, 218. This does not, however, preclude a subsequent action by the defendant to regain possession of the chattels.

The judgment should be affirmed, with costs.

Lehman and Whitaker, JJ., concur.

Judgment affirmed, with costs.