The plaintiff was executor of the will of Cornelius Van Burén, and, as such executor, two bonds aggregating $1,000 came into his possession. These he deposited for safe keeping with defendant. Subsequently, and before this action was commenced, an administrator with the will annexed — one Van B. Pruvn •— was appointed and entered upon the discharge of his duties. At the time of such appointment it is conceded that these bonds were the property of the estate of the testator, the deceased, Cornelius Van Burén. It is conceded that the plaintiff in this action never had any interest or title to the bonds individually. The defendant claimed that plaintiff, as an individual, turned the bonds over to it as collateral security for a debt owing to the bank. The jury found against this contention by finding that no agreement was ever made to that effect. Prior to the commencement of this action, the plaintiff caused a demand to be made upon defendant, both in his individual capacity and in his capacity as executoi-, for a return of the bonds to one A. R. Gibbs. Such demand was in writing and declared that these bonds belonged “to the estate of Cornelius Van Burén, deceased.” This written order for the bonds was signed by plaintiff individually and by him as executor, and was subsequently, before action, indorsed over to Van B. Pruyn, the administrator with the will annexed. The question arises, can this action be maintained, on these undisputed facts, for conversion of the bonds, in the name of plaintiff individually ? I think it unnecessary to examine any other question raised on this appeal other than the one relating to the plaintiff’s right to maintain the action in his individual name. The facts touching any alleged transfer by plaintiff to defendant were settled by the jury adversely to defendant, and ujion testimony which seems to be sufficient to sustain their verdict. But the question of plaintiff’s ownership cf the bonds, or of any interest therein, giving him in his individual name a right of action for their conversion, is directly raised by the answer. The plaintiff established upon the trial the absolute ownership of the bonds by Cornelius Van Burén at the time of his death, and plaintiff’s possession of *85them thereafter only as executor of his estate, a.nd was careful to prove no interest whatever at any time in him individually, and disclaimed having ever treated them as individual property in any way, and on this character of evidence the court and jury apparently found with plaintiff. Before the trial, the bonds were demanded of the defendant by the executor as the property of the estate of Cornelius Van Burén. This is not property acquired by an executor after a testator’s decease — property which lie may treat as his own, or as belonging to the estate — but it is property in which the executor never had, by contract or otherwise, any interest. As to such property, as I understand the Code of Civil Procedure in its present form (§§ 449,1814), all actions relating to such property must be brought in the official name of the personal representative of the estate. In Thompson v. Whitmarsh (100 N. Y. 40) the Court of Appeals said : “ The effect of the section, and the change produced by it, is upon the class of cases in which the action could have been maintained in either form; as where, upon a contract, made with the testator, the cause of action accrued after his death; or where, upon a debt or obligation due to the deceased, the executor or administrator has taken a new security or evidence of debt. In these cases, before the Code, the action might be in the individual or representative name, but now must be in the latter.”
The plaintiff, as an individual, cannot recover in conversion by standing on any contract of bailment. He must show some special property in the thing converted to maintain such an action. Here, plaintiff has not even the prima faoie title evidenced by possession. It cannot be said that defendant has no right to deny plaintiff’s right to recover, since a demand has been made upon him as bailee by the executor, the true owner. If the defendant now surrendered the property to plaintiff, or submitted to pay him individually its appraised value, the true representative of the estate of Cornelius Van Burén might also recover full value, for the property is his, and he demanded it before this action was brought. Upon his rights this judgment has no bearing.
I think the judgment and order should be reversed, with costs.
Herrick, J., concurred.
Judgment affirmed, with costs
*86(£asjes DETERMINED IN THE FIRST DEPARTMENT IN THE APPELLATE DIVISION, 1900.