On account of the default in the payment of its mortgage debt the legal title to the property had vested in the New York County National Bank and it had taken possession thereof. The marshal, who held possession for it, had no authority to admit the plaintiff to joint possession, and it does not appear that he assumed to do so. The only right of the mortgagor was a right of redemption and such right doubtless vested in the plaintiff as the second mortgagee. The *491plaintiff undoubtedly has a cause of action against the sheriff for destroying this right of redemption, but that is not the theory upon which this action is brought. The plaintiff seeks to recover here upon the ground that it was the owner and in possession of the property. Manifestly, it was not the owner, and I think it clearly appears that it had no legal possession. I, therefore, dissent, and am of opinion that the judgment should he reversed.
Judgment and order affirmed, with costs.