The plaintiff, Firemen’s Mutual Benevolent Association of the City of New York, is a corporation organized under the Membership Corporations Law. The twelve bonds of $1,000 each were bought with the funds of the association. Prior to June, 1919, for a number of years,' the defendant had been the president of the plaintiff. He was defeated for re-election in June, 1919, and immediately thereafter certain members of the board of directors, who had long served with the defendant, are charged with having passed a resolution bestowing upon their former president said Liberty bonds, being one-half of the Liberty bonds then owned by the plaintiff. Said bestowal was in consideration of defendant’s past faithful service. It appears that the defendant, during his incumbency as president, had received a salary from the plaintiff in an amount equal to that received by a captain of the fire department. The bonds in question, together with a like amount which were not delivered to the defendant, were in the possession of one Patrick J. *319Sullivan, chairman of the board of directors of the plaintiff. Sullivan continued in office after the defeat of the defendant as president and turned over said bonds to the defendant. Thereafter Sullivan was removed from office and in turning over the plaintiff’s bonds to his successor, in lieu of the $12,000 of said bonds which he had delivered to the defendant, produced the defendant’s receipt therefor. The action is to recover possession of said bonds or for the sum of $12,000, in case possession cannot be given to the plaintiff.
In the amended answer of the defendant he alleges that the plaintiff herein transferred, gave and delivered said bonds to the defendant pursuant to a contract, and that they were received by the defendant in settlement of his rights and claims thereunder.
A writ of replevin was issued herein and delivered to the sheriff of Kings county, directing him to take possession of said bonds. The defendant refused to disclose their whereabouts, and said writ of replevin remained unexecuted by reason of the inability of the sheriff to locate said bonds. Thereupon application was made to the Special Term under section 717 of the Code of Civil Procedure for an order requiring the deposit of said bonds by the defendant in court. A certified copy of the order was served upon the defendant, who applied for a stay thereof, which was denied. Failing to deliver the same, application was made for an order adjudging the defendant in contempt of court, and the defendant was finally adjudged in contempt of court, and his commitment ordered, unless the bonds were deposited. (See 201 App. Div. 315.) Thereupon said bonds were deposited with the county clerk by whom they were turned over to the chamberlain of the city of New York, in whose possession they now remain. The deposit was only made after the commitment of the defendant for contempt.
The question presented upon this appeal is as to whether section 717 of the Code of Civil Procedure, by its terms, is sufficiently broad to authorize the granting of the order appealed from. That section provides that “ Where it is admitted, by the pleading or examination of a party, that he has, in his possession or under his control, money, or other personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to another party, the court may, in its discretion, grant an order, upon notice, that it be paid into, or deposited in court, or delivered to that party, with or without security, subject to the further direction of the court.” (Italics are the writer’s.)
It will be noted that section 717 not only relates to personal property capable of delivery, which, being the subject of the action is held by a party as trustee for another, but the section also provides *320for the deposit of such property in court where it belongs to or is due to another party. I think the Special Term, upon the moving papers, might have been justified in holding that the bonds in suit were held by the defendant in a fiduciary capacity. At the time the defendant received the bonds in suit, he executed to the board of directors of the plaintiff a receipt in the following terms:
“ July 22, 1919.
“ Received from Board of Directors $12,000 of Liberty Bonds to be held in escrow pursuant to resolution of Board of Directors to see that the contract is kept by the Association.
“ JAMES D. CLIFFORD.”
This receipt would indicate, at least, that the defendant did not, in the first instance, obtain possession of the bonds in suit by virtue of title thereto, but that the same were delivered to and were to •be held by him in escrow as security for the performance of some contract of the plaintiff. Be that as it may, section 717 of the Code of Civil Procedure is in the disjunctive, and where it is admitted by the pleading of a party that he has possession of personal property capable of delivery which belongs to another party, the court may, in its discretion, grant an order, upon notice, that said property be deposited in court, subject to the further direction of the court.
The complaint in this action alleges that on or about October 25, 1920, and at the commencement of this action, the plaintiff was and still is the owner and entitled to the immediate possession of said Liberty bonds, and that the defendant became possessed thereof and wrongfully detained the same from the plaintiff.
The defendant’s answer sets forth and alleges six separate and distinct defenses to plaintiff’s cause of action. In his fourth defense, the defendant alleges that, prior to the commencement of the action, the plaintiff herein, for a good and valuable consideration, duly assigned, transferred, gave and delivered the bonds described in the complaint herein to the defendant, and that defendant was and duly became the owner thereof and entitled to the possession thereof. In the fifth separate defense the defendant alleges that any bonds delivered by plaintiff to defendant, and received or accepted by defendant, were delivered and accepted in accordance with the terms of a contract with the plaintiff. In the sixth separate defense the defendant alleges that, in consideration of the surrender of certain rights of the defendant against the plaintiff, the plaintiff delivered to the defendant the property mentioned in the complaint.
It will thus be seen that the pleading of the defendant admitted that the bonds in suit came into his possession. Presumptively, they remained and were in his possession at the time of the com*321mencement of this action. Nowhere in his answer does the defendant specifically deny the possession of said bonds. Notwithstanding the allegations of his answer, that he rightfully became possessed of said bonds, in his affidavit, read in opposition to plaintiff’s application for an order requiring defendant to deposit said bonds in court, the defendant makes affidavit as follows:
“ Deponent denies that he ever admitted having the possession of the bonds, or their custody or control, at or since the commencement of this action; that the said bonds were, long before the commencement of this action and before the making of any alleged demand, disposed of by deponent, and that the same were not secreted, removed or disposed of for the purpose of defeating this action, and are not now and have not been for many months past, in the possession of deponent.”
Not only does the answer of the defendant indicate the falsity of such averment in his affidavit, but the fact that said bonds were promptly produced and deposited with the county clerk upon defendant’s commitment for contempt clearly disproves such averment and proves that said bonds were, in fact, in defendant’s possession or, at least, subject to his control, and, therefore, amenable to the provisions of section 717 of the Code of Civil Procedure.
The order appealed from was discretionary. I think said section of the Code was designed to meet just such a situation as is presented here. The moving affidavits show that the defendant is financially irresponsible, and that, unless the subject-matter of the action is impounded and the bonds in suit held pending, the trial of the action, nothing will prevent their dissipation by the defendant. The defendant, in his affidavit, does not deny that he is financially irresponsible, but contents himself with the averment that he “ is a middle-aged man, in good health, whose credit has never been assailed, and who has never had any judgment recorded against him, and has never been declared a bankrupt and has never made an assignment for the benefit of creditors.” The defendant does not claim to be financially responsible, nor does he state that he is the owner of any property whatever. Not only does the financial irresponsibility of the defendant appear, but it is stated in the moving affidavits, and is undenied by the defendant, that the plaintiff has given security in a penal bond in the sum of $24,000, executed by the American Surety Company, which will amply secure the defendant in this action.
The order appealed from merely directs that the bonds in suit be deposited in court, subject to the further direction of the court. Under such circumstances, unless the plaintiff is able upon the *322trial to establish ownership and right to possession of said bonds, the court will direct that the same be returned to the defendant, with such damages as the defendant may have suffered by reason of being deprived thereof. No possible injury can come to the defendant from the order appealed from, and compliance with its provisions may be quite essential to securing plaintiff’s rights.
The order should be affirmed, with ten dollars costs and disbursements to the respondent.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.