Houghton, J.:
The action is in replevin, brought by the plaintiff as receiver in supplementary proceedings of the property of the Columbia Publishing Company. ' The plaintiff was appointed such receiver on the 30th day of June, 1902. The property replevied consisted of printing presses, type, motors, shafting and other articles incident to a printing plant, and on the 10th day of May, 1900, was in possession of and owned, subject to certain incumbrances, by the' Columbia Publishing Company. On that day the Columbia Company entered into .an agreement to sell the printing plant in ques-. tiozi to the Everson-Hickok Company, and on the twenty-second day of tlzat month executed and delivered a bill of sale thereof, con-. taining a covenant of warranty of title. On the following day the EversoiirHickok Company acknowledged by indoi’sement on the contract of sale that it had received delivezy of the property mentioned therein. The property reznained in the undistm'bed possession and use of the Evez’son-TIiclrok Company until March 9, 1901, when it was trazisfez'red by bill of sale exjDressing a Valuable consideration by way of assiimption of debts, and delivered to defendant Hickok Pi-inting Company. The complaint alleges that the Coluizzbia Publishing Company deznanded the return of the property on the 22d day of February, 1901, but I find no proof in the record of that fact, and it is expressly denied in the answer of the Everson-Hickok Company. The property reznained in the possession and use of the Hickok Printing Coznpazzy from the time of the transfer' to it until Septeznber 12, 1902, when it was seized by the replevin process issued herein. Deznand uqzon the latter company for its return was made by the plaintiff sozne tizne between June 30, 1902, and the coznznence'znent of the action. The property was sold at public auction.
At the close of the plaintiff’s case the court disznissed the eomplaizzt azzd pz-oceeded to try the issue as. to the value of the property. From the judgment entered the plaintiff appeals.
The case was before this court on a former appeal (103 App. Div. 574), on the pleadings and opening of counsel for plaintiff, -and it was held that the plaintiff could not maintain this action at.law in replevin because the .possession of the property had been delivered by the Columbia Publishing Coznpany, the judgment debtor, uncon[735]*735dition'ally to the Everson-Hickok Company, which had transferred it to the Hickok Printing Company prior to plaintiff’s appointment as receiver.' The judgment was reversed, however, because the value of the property, which could not be restored, was improperly assessed. The prior record on appeal contained the bills of sale and all the facts relating to them which appear in the present record.
The appellant concedes that the law of the case as established on the former appeal must now prevail, but complains of the exclusion of certain evidence which he sought to introduce tending to show that the bill of sale from the Columbia Publishing Company to the Everson-Hickok Company was delivered conditionally, and that the delivery of the property and of the bill of sale was not to take effect as a transfer until certain conditions on the part of the vendee had been complied with.
There is no question as to the rule of law enunciated in Reynolds v. Robinson (110 N. Y. 651) and kindred cases, that parol evidence is admissible to show that a writing which is, in form, a complete contract, of which there has been a manual tradition, was not to become a binding contract until the performance of some condition precedent resting in parol. It was under this rule that the counsel for appellant sought to introduce his evidence. In his argument to the court, which appears in the record, he announced the rule, to which the court assented. ‘ The questions which he put to his witnesses, however, I do not think called for answers within the rule. They either called for the broad conversations had at the time of the execution of the bill of sale, which might tend to vary its terms, or for the general circumstances under which it was' executed. The rule permitting parol evidence of the conditional delivery of a complete contract in writing is a very narrow one, and as is said in Reynolds v. Robinson (supra) should be cautiously applied and confined strictly to cases coming clearly within it. To avoid any question that the evidence which the plaintiff sought to elicit might tend to vary the terms of the written bill of. sale, the questions should have been confined to what was said upon its delivery respecting any conditions as to its taking effect as an absolute transfer. The evils to which any loose application of the rule might lead are well illustrated by the present case. The bill of sale was delivered by the Columbia Publishing Company to the Everson[736]*736Hickok Company and the property actually delivered' and the precaution taken of having the Everson Hickok Company acknowledge in writing the receipt of the property, which was permitted; to remain .in the possession of the latter, without demand for compliance with any of the alleged conditions, until it was actually sold and delivered to the Hickok Printing Company. Even then,- there was no Complaint on the part of the Columbia Publishing Company until it was unable to pay a judgment, when a receiver in supplementary proceedings was appointed, who made demand and sought to regain the property on the ground that the .title never passed from the Columbia Publishing Company because some condition was attached to its delivery and sale. Under these circumstances, if the rule respecting parol evidence of conditional delivery applies to all, it should be applied with great caution and only when the proposed evidence comes strictly within the rule. In addition, I think the Columbia Publishing Company and its receiver conclu-' sively waived compliance with the condition, if any existed, and that plaintiff is estopped from now claiming that title never passed' ' to the subsequent purchaser. .
The appellant also complains that he was not' permitted to show, the consideration for the transfer of the property. This broad question was hot open for consideration in an action at law such as the present one is. If the property was transferred to the EversonHickok Company without consideration, or even inadequate consideration, still they obtained title. Such title may have been fraudulent as to creditors and subject to be set aside; but in such a case, the receiver in supplementary proceedings must bring an action in. equity for that purpose. ITe can obtain no such, relief in an action at law, for his title to property is confined to that owned by the judgment debtor at the time of his appointment. (Stephens v. Meriden Britannia Co., .160 N. Y. 178.) The legal title had passed from the judgment- debtor at the time the plaintiff was appointed receiver, not only by unconditional delivery and waiver of conditions, but by estoppel as well, and he, therefore, could not replevin the property, and his complaint was properly dismissed.
There was error, however, in assessing the value of the property. The jury rendered a verdict, finding the present value of the property $5,500. They allowed no damages for- detention or use aside [737]*737from the legal interest on that amount. The proof on the part of defendant was that the value of the property at the time of the trial was $3,300. The property sold at auction for $1,550.
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Houghton, J.:
The action is in replevin, brought by the plaintiff as receiver in supplementary proceedings of the property of the Columbia Publishing Company. ' The plaintiff was appointed such receiver on the 30th day of June, 1902. The property replevied consisted of printing presses, type, motors, shafting and other articles incident to a printing plant, and on the 10th day of May, 1900, was in possession of and owned, subject to certain incumbrances, by the' Columbia Publishing Company. On that day the Columbia Company entered into .an agreement to sell the printing plant in ques-. tiozi to the Everson-Hickok Company, and on the twenty-second day of tlzat month executed and delivered a bill of sale thereof, con-. taining a covenant of warranty of title. On the following day the EversoiirHickok Company acknowledged by indoi’sement on the contract of sale that it had received delivezy of the property mentioned therein. The property reznained in the undistm'bed possession and use of the Evez’son-TIiclrok Company until March 9, 1901, when it was trazisfez'red by bill of sale exjDressing a Valuable consideration by way of assiimption of debts, and delivered to defendant Hickok Pi-inting Company. The complaint alleges that the Coluizzbia Publishing Company deznanded the return of the property on the 22d day of February, 1901, but I find no proof in the record of that fact, and it is expressly denied in the answer of the Everson-Hickok Company. The property reznained in the possession and use of the Hickok Printing Coznpazzy from the time of the transfer' to it until Septeznber 12, 1902, when it was seized by the replevin process issued herein. Deznand uqzon the latter company for its return was made by the plaintiff sozne tizne between June 30, 1902, and the coznznence'znent of the action. The property was sold at public auction.
At the close of the plaintiff’s case the court disznissed the eomplaizzt azzd pz-oceeded to try the issue as. to the value of the property. From the judgment entered the plaintiff appeals.
The case was before this court on a former appeal (103 App. Div. 574), on the pleadings and opening of counsel for plaintiff, -and it was held that the plaintiff could not maintain this action at.law in replevin because the .possession of the property had been delivered by the Columbia Publishing Coznpany, the judgment debtor, uncon[735]*735dition'ally to the Everson-Hickok Company, which had transferred it to the Hickok Printing Company prior to plaintiff’s appointment as receiver.' The judgment was reversed, however, because the value of the property, which could not be restored, was improperly assessed. The prior record on appeal contained the bills of sale and all the facts relating to them which appear in the present record.
The appellant concedes that the law of the case as established on the former appeal must now prevail, but complains of the exclusion of certain evidence which he sought to introduce tending to show that the bill of sale from the Columbia Publishing Company to the Everson-Hickok Company was delivered conditionally, and that the delivery of the property and of the bill of sale was not to take effect as a transfer until certain conditions on the part of the vendee had been complied with.
There is no question as to the rule of law enunciated in Reynolds v. Robinson (110 N. Y. 651) and kindred cases, that parol evidence is admissible to show that a writing which is, in form, a complete contract, of which there has been a manual tradition, was not to become a binding contract until the performance of some condition precedent resting in parol. It was under this rule that the counsel for appellant sought to introduce his evidence. In his argument to the court, which appears in the record, he announced the rule, to which the court assented. ‘ The questions which he put to his witnesses, however, I do not think called for answers within the rule. They either called for the broad conversations had at the time of the execution of the bill of sale, which might tend to vary its terms, or for the general circumstances under which it was' executed. The rule permitting parol evidence of the conditional delivery of a complete contract in writing is a very narrow one, and as is said in Reynolds v. Robinson (supra) should be cautiously applied and confined strictly to cases coming clearly within it. To avoid any question that the evidence which the plaintiff sought to elicit might tend to vary the terms of the written bill of. sale, the questions should have been confined to what was said upon its delivery respecting any conditions as to its taking effect as an absolute transfer. The evils to which any loose application of the rule might lead are well illustrated by the present case. The bill of sale was delivered by the Columbia Publishing Company to the Everson[736]*736Hickok Company and the property actually delivered' and the precaution taken of having the Everson Hickok Company acknowledge in writing the receipt of the property, which was permitted; to remain .in the possession of the latter, without demand for compliance with any of the alleged conditions, until it was actually sold and delivered to the Hickok Printing Company. Even then,- there was no Complaint on the part of the Columbia Publishing Company until it was unable to pay a judgment, when a receiver in supplementary proceedings was appointed, who made demand and sought to regain the property on the ground that the .title never passed from the Columbia Publishing Company because some condition was attached to its delivery and sale. Under these circumstances, if the rule respecting parol evidence of conditional delivery applies to all, it should be applied with great caution and only when the proposed evidence comes strictly within the rule. In addition, I think the Columbia Publishing Company and its receiver conclu-' sively waived compliance with the condition, if any existed, and that plaintiff is estopped from now claiming that title never passed' ' to the subsequent purchaser. .
The appellant also complains that he was not' permitted to show, the consideration for the transfer of the property. This broad question was hot open for consideration in an action at law such as the present one is. If the property was transferred to the EversonHickok Company without consideration, or even inadequate consideration, still they obtained title. Such title may have been fraudulent as to creditors and subject to be set aside; but in such a case, the receiver in supplementary proceedings must bring an action in. equity for that purpose. ITe can obtain no such, relief in an action at law, for his title to property is confined to that owned by the judgment debtor at the time of his appointment. (Stephens v. Meriden Britannia Co., .160 N. Y. 178.) The legal title had passed from the judgment- debtor at the time the plaintiff was appointed receiver, not only by unconditional delivery and waiver of conditions, but by estoppel as well, and he, therefore, could not replevin the property, and his complaint was properly dismissed.
There was error, however, in assessing the value of the property. The jury rendered a verdict, finding the present value of the property $5,500. They allowed no damages for- detention or use aside [737]*737from the legal interest on that amount. The proof on the part of defendant was that the value of the property at the time of the trial was $3,300. The property sold at auction for $1,550. The court instructed the jury that they must find the value of the property at the time of the trial, and that they might allow interest upon the value of the property at the time it was taken, as damages, or they might allow the usable value from such time. The only proof that the property was of the value of $5,500 at the time of the trial was that contained in the affidavit of the plaintiff which accompanied his requisition to the sheriff. This affidavit was made four years before the trial and was insufficient proof upon which to base a finding of value four years later, as was held on the former appeal. The jury might have found the value to have been $3,300 at the time of the trial, and have allowed a further sum for depreciation, but this they did not do except by way of interest.
The plaintiff made a motion for a new trial, and. one of the specific grounds was that the jury had used as a basis for their verdict the value stated in the affidavit made in 1902. ISTo order denying the motion for a new trial appears in the record, and the appeal is from the judgment only. There is some question whether or not even a specific objection to the verdict, of this character, is raised without the formal entry of the order denying the motion for a new trial and an appeal therefrom. The plaintiff objected to the receipt of the evidence, however, on the specific ground that it was immaterial to show value of the property on the day of the trial, and took an exception to the overruling of his objection. So far as the issues were concerned, the affidavit bore only upon the question of value, and thus a case is presented where it is proper to provide that the judgment should be reversed and a new trial granted, with costs to appellant to abide event, unless the defendant stipulates to reduce the judgment to $3,300 and interest thereon from the time of the seizure of the property, and costs, in which case the judgment should be affirmed, without costs of this appeal, which I think is the disposition that should be made of this case.
Patterson, P. J., and McLaughlin, J., concurred; Ingraham and Clarke, JJ. dissented.