I concur in the opinion of WERNER, J., but have a word to add in reference to the contention in the dissenting opinion of my brother HAIGHT that the surrender of the bonds to the German-American Bank, when that company instituted its suit against Stranahan and obtained an attachment, was not a conversion, because the bonds were taken from the defendant under legal process. To this there are three sufficient answers:
1. The process under which the bailee is justified in surrendering the property of his bailor must be valid. Here the attachment is against Stranahan, and the courts gave no authority to the sheriff to seize the property of the gas light company.
2. When the property is taken out of his custody by valid, legal process, the bailee must, within a reasonable time, give notice to the bailor. (Bliven v. Hudson River R.R. Co.,36 N.Y. 403; Roberts v. Stuyvesant Safe Deposit Co., 123 N.Y. 57. ) No such notice was given by the defendant.
3. Instead of resisting as far as it was able, the defendant assumed to hold the bonds as pledgee, and obtained as a condition of the surrender the amount of its loan. All this *Page 107 has been said on the assumption that the bonds were taken from the defendant by the sheriff and transferred to the German-American Savings Bank under the attachment. The evidence does not show this fact and, indeed, it was impossible that it should have occurred. On the discontinuance of the suit the attachment fell; it was the duty of the sheriff to return the bonds to the defendant, and if he failed to do so the defendant should have made him. It is, therefore, apparent that the bonds were given to the German-American Bank solely under a voluntary agreement between the defendant and that bank.