The evidence was sufficient to sustain the verdict of the jury as to the identity of the goods, to recover which the action was brought. The real question is, whether the trial court was justified upon the *627evidence in holding that plaintiff’s title or right to possession of the goods covered by the trust agreement (so-called) was conclusively established so as to enable it to maintain this action. There was substantially no dispute as to the facts, and the question was, therefore, correctly regarded as one of law for the trial court.
The goods were never actually delivered to the plaintiff, nor was there any symbolical delivery by way of transfer and delivery to the plaintiff of the bills of lading. The goods were, at the time the loan was made and the note and the receipt were taken, in the possession of the custom house authorities, and were not given up by them until the duties were paid some days later. The bills of lading were held by Perry, Rider & Co., who were the consignees therein named, and no transfer was made of the bills to any one until after the duties were so paid. The statements in the note, and the receipt as to the delivery and redelivery of the goods, were untrue in fact. Under these circumstances, there was and could be no legal pledge of the goods by Sardy, Coles & Co. to the plaintiff, inasmuch as the delivery of possession is absolutely' essential in order to constitute a pledge. Upon the conceded facts, the most that could be claimed by the plaintiff was that, by virtue of the note and receipt, it acquired an equitable lien upon the goods. Such a lien, however, even if it existed, did not authorize the plaintiff to reduce the goods to possession against the consent of the defendant’s testator, without the interposition of a court of equity. Such a lien, therefore, was not a sufficient interest in the property to enable the plaintiff to maintain this action. An action in equity to enforce such a lien and recover the possession of the goods might very likely have been maintained; but in order to maintain this action the plaintiff must have had the legal title or a legal right to the possession of the goods. (Deeley v. Dwight, 132 N. Y. 59, and cases therein referred to.) The mere equitable right to the possession of the property will not do. It was distinctly held in Wheeler v. Allen (51 N. Y. 37) that the plaintiff could not maintain replevin where the legal title was in the defendant as trustee for him. Earl, C., said: “ In law, he (the defendant) held the same as trustee for the plaintiff, and as such trustee he could be compelled to account to the plaintiff in an action in equity. But an action of replevin to recover the scrip under such circumstances is a great novelty. The legal title was *628never vested in the plaintiff, and his only remedy to procure this scrip was by an action in equity.” This case was held, in Western Railroad Company v. Bayne (75 N. Y. 4), to be authority for the equitable action. Folger, J., said : “ The opinion of Earl, 0., in that case, states that the remedy of the plaintiff there to procure the scrip was a suit in equity.” The same rule was laid down in Haas v. Altieri (50 N. Y. St. Repr. 341). The court said that the plaintiff must have the right of immediate possession, and that the title must be a legal title and not a right enforcible only in equity.
The result of these views is, that the court erred in holding that the plaintiff had such interest in the goods as entitled it to maintain this action. ,
The judgment should be reversed and a new trial ordered, with costs to the appellants to abide event.
Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellants to abide event.