§ 7101.When action may be brought.

CPA § 1093, which dealt with the defense of title in a third person, is omitted. That section was derived from § 1723 of the Code of Civil Procedure, which provided that “the defendant may by answer defend on the ground that a third person is entitled to the chattel without connecting himself with the latter’s title.” In 1952, upon the recommendation of the Judicial Council, § 1093 was amended to the form in which it appeared prior to the adoption of the new CPLR Laws 1952, c. 829; 17 NY Jud Council Rep 258–59 (1951). The distinction between wrongful taking and wrongful detention is reflected by the common law distinction between replevin and detinue.

At common law, the writ of replevin was designed for the recovery of property wrongfully distrained, where trespass would not lie because the distrainor neither claimed nor acquired the necessary property in the goods; rather, he conceded that property remained in the distrainee. See Finkelstein, The Plea of Property in a Stranger in Replevin, 23 Colum L Rev 652 (1923); Note, 27 Mich L Rev 936, 937 (1929). The distrainor was a creditor—such as a landlord—who claimed that the distrainee—his tenant—had defaulted in payment of the debt—rent. The only issue under a common law writ of replevin was whether there was any distrainable debt owing from the plaintiff to the defendant. If a question of title to the property distrained were raised—by a claim of property in the defendant or in a third person—the writ had to be dismissed, since the issue of title could be tried only under the writs of trespass or trover. There were, of course, complications: for example, even though the defendant-distrainor claimed title, if the sheriff, under the writ de proprietate probanda, determined that the property was the plaintiff’s, and that the defendant’s claim of title was without merit, the replevin could continue if the defendant thereafter set up a claim for a debt due from the plaintiff. With time, the clear lines of the common law were considerably blurred. See Note, 27 Mich L Rev 936, 937 (1929).

The scope of statutory replevin has been expanded so that it may be used to recover possession of goods wrongfully taken as well as goods wrongfully detained although rightfully taken. Nevertheless, the CPA permitted the defendant, in a case of wrongful detention, to defeat the replevin by proving that a third person had a right to possession superior to either his own right or that of the plaintiff, regardless of the possessory rights between the parties. Under the theory of the common law writ, it was logical that such a plea should defeat the replevin; under the modern theory of replevin, however, the plea of property in a third person is not significant, and the decision should rest on the relative possessory rights of the parties.

The Judicial Council, in recommending the enactment of section 1093 in its present form, stated:

A plea of title in a stranger should be a good defense to an action to recover a chattel based upon wrongful detention, although there is no connection between defendant and the stranger’s title, for, in such case, the defendant’s right to possession should be upheld as against anyone but the true owner. . . . [17 N.Y. Jud. Council Rep. 259 (1951).].

CPA § 1093, however, encompassed not only wrongful detention where the plaintiff had no prior possession, but also wrongful detention where the plaintiff delivered the property to the defendant, as where the property was delivered to a bailee to repair, who later refused to return it to the plaintiff, basing his refusal on the superior right of a third person. The former law thus allowed a defendant who had a lesser right to possession than the plaintiff to keep the property and withstand a replevy by asserting the superior right of a third person, even though there was no assurance that he would turn over the property to the third person. There is no good reason to perpetuate this situation, for if the holder of a chattel is genuinely concerned about the rights of the true owner, he may employ the modern procedural device of interpleader to protect them, or may merely notify the person who claims to be the true owner and the latter may intervene.

The last sentence of CPA § 1093 stated that where the basis of the action was wrongful taking, the defense of title in a third person was good only where the defendant connected himself with that title. The nature of the connection required by CPA § 1093 is not clear from the case law, but one authority states that “the defendant must not only show that the third person had superior rights, but that they came to the defendant by transfer or otherwise so that defendant is entitled to assert them, as legal holder and successor in interest.” 13 Carmody-Wait, Cyclopedia of New York Practice 296 (1954).

This formulation of the rule is the equivalent of saying that he who proves the better right to possession will prevail. Although the language of the last sentence of CPA § 1093 was cast in terms of the right of a third person, the defendant, in proving a sufficient connection with that right, proved his own superior right to possession.

With the omission of CPA § 1093, the issue in replevin will be determined by the relative possessory interests of the parties to the action. This result accords with that recommended by commentators. See Finkelstein, The Plea of Property in a Stranger in Replevin, 23 Colum L Rev 652, 657 (1923); Note, Replevin—Plaintiff’s Right to Possession—Plea of Property in a Stranger, 32 Minn L Rev 84, 86 (1947); Note, Replevin—Defenses of Paramount Right to Possession in a Third Person, 27 Mich L Rev 936, 941 (1929). Montana is the only state besides New York where title in a third party is a permissible defense to replevin by statute. See Mont Rev Codes Ann § 93-4119 (1947). The Montana statute permits this defense whether wrongful taking or wrongful detention is alleged.

CPA § 1091, which permitted an action by a person who acquired his right to possession after the defendant took possession, is omitted as unnecessary. It stated an obvious rule which does not require specific treatment.

The first sentence of CPA § 1131, which covered survival of an action for recovery of a chattel, is also omitted as unnecessary, since its substance is covered by § 117 of the Decedent Estate Law.

RCP 270 to 273 are omitted in favor of general rules of pleading. RCP 270 required a statement of the basis of the right to possession. This must be part of the complaint under this section and section 3013. RCP 271 was based upon the distinction between wrongful taking and wrongful detention required by CPA § 1093, a distinction which is abolished by this article. RCP 272, covering a chattel distrained doing damage (e.g., cattle damage feasant), is omitted for the same reason as is RCP 270.

All of the papers specified in RCP 273, with the exception of the pleadings, are to be included in the sheriff’s return, which, under § 7107, is filed with the clerk of the court, and is therefore available for perusal by the court or referee at any time. If the action is prosecuted without a replevy, there will be no affidavit, requisition or sheriff’s return. The need to supply a summons and complaint to the judge or referee is obvious to any attorney in this as in any other case.

Add, L 1962, ch 308, eff Sept 1, 1963.