Pelham Hod Elevating Co. v. Baggaley

12 N.Y.S. 218, 34 N.Y. St. Rep. 691, 1890 N.Y. Misc. LEXIS 3488

Opinion

McAdam, C. J.

The Code has provided a special procedure by which a defendant against whom replevin is instituted may retain the property claimed, (section 1704,) and by which a third person, not a party, may obtain possession of the same under claim of title, (section 1709.) Neither of these methods were resorted to in the present instance, and the plaintiff became entitled to receive and hold possession of the property until the final determination of the action. The defendant was not entitled to an order of interpleader under section 820 of the Code, because he did not tender into court the property claimed. Indeed, he had lost the right of possession, and could not deliver the property. The plaintiff became entitled to possession under the provisions of the Code, and the court could make no different direction concerning it. This view is in accord with the authorities. Edgerton v. Ross, 6 Abb. Pr. 189; Vosburg v. Huntington, 15 Abb. Pr. 254; Lynch v. St. John, 56 How. Pr. 144. Section 820 of the Code must be-construed in harmony with the other sections cited, so that all may have effect, without infringing upon or impairing the purpose of either. It follows that the order appealed from must be reversed, with costs. All concur.