The plaintiff, the father of the third party claimant, Annie V. McLaughlin, on May 25, 1932, commenced an action in replevin against the defendants Edward F. McLaughlin, *2Guaranty Safe Deposit Company of New York, John Doe and Richard Roe. The affidavit and undertaking were delivered to the sheriff of New York county to replevy securities of the aggregate value of $400,000. The sheriff seized the bonds that were in a safe deposit box in the name of Edward F. McLaughlin and the Guaranty Safe Deposit Company of New York. On May 31, 1932, Annie V. McLaughlin served on the sheriff a notice of claim of ownership and immediate right to possession of the bonds and a statement of the facts upon which her claim'to ownership and immediate possession was based. After the filing of the third party claim, plaintiff delivered to the sheriff another bond in the sum of $400,250 pursuant to section 1109 of the Civil Practice Act. The bonds were thereafter delivered to the plaintiff. Then plaintiff moved to make the third party claimant a party.
The motion was granted on the authority of section 192 of the Civil Practice Act. This section which refers to non-joinder and misjoinder of parties permits the substitution of new parties at any stage of the cause “ as the ends of justice may require.” But it does not authorize the bringing in of parties where statutory provisions are in existence showing a comprehensive plan to administer a remedy such as is shown in article 66 of the Civil Practice Act, which governs an action to recover a chattel. ' (Hazlett v. Hamilton S. & W. Co., 47 Misc. 660.) Respondent, however, claims that in any event the order is permissible under section 193 of the Civil Practice Act (as amd. by Laws of 1923, chap. 250). This contention is not justified by the decisions.
Replevin is one of the oldest of common-law actions. The only question presented for determination is the right of possession as between the parties thereto. The Legislature has provided an elaborate scheme for the determination of claims of third parties and for the protection of their rights. The claims of third parties have never been regarded as any concern of the plaintiff. The Civil Practice Act, section 1107, provides that at any time before a chattel which has been replevied is actually delivered to either party, a third party claimant may make an affidavit and deliver it to the sheriff stating that he has a claim and setting forth the facts upon which his right to possession depends. The statute then regulates the procedure. The third party may on his own application be made a party defendant and assert his claim as such (Civ. Prac. Act, § 193), or he may resort to other means recognized by law to secure his rights, as in Pracht v. Gunn (69 App. Div. 396). If the third party asserts his claim by affidavit served upon the sheriff, he may maintain an action against the sheriff if the chattel is turned over to the plaintiff by the sheriff. (Civ. Prac. Act, *3§ 1108.) The sheriff has the power, before he delivers the chattel to the plaintiff, to serve on plaintiff’s attorney a copy of the affidavit with a demand for indemnity against the claim. If the indemnity is not furnished within a reasonable time, the sheriff may deliver the chattel to the claimant without incurring any liability to the plaintiff. (Civ. Prac. Act, §§ 1107, 1109; McCarthy v. Ockerman, 154 N. Y. 565.) If the plaintiff - does furnish the indemnity, it should consist of a written undertaking running to the sheriff on the condition that the sureties will indemnity the sheriff against any liability for damages, costs or expenses to be incurred in any action brought against the sheriff by the claimant. The terms of the undertaking are regulated by the statute. If the claimant sues the sheriff thereafter, the sureties may be substituted as defendants in such an action. (Motor Finance Co. v. Casualty Co. of America, 216 N. Y. 688; Civ. Prac. Act, §§ 156,1109.)
It was never contemplated that plaintiff might avoid all responsibility to such third party by the simple device of bringing her into the action as an additional party defendant. The third party claimant by such action would be deprived of most, if not all, of the remedies provided by the Legislature for her protection. Had she been named as an original party she would have had the protection of a bond for double the value of the securities. As an additional party brought in by order, she would have no bond running to her. As a party to the action, she would lose the right to her claim against the sheriff since this right depends upon her not being a party to the original suit. (Civ. Prac. Act, § 1108.) Thus the protection of the bond which the plaintiff was required to furnish before receiving possession of the chattels would be lost to her. There are no facts in the instant case which require an order destroying the protection provided by the Legislature.
In United Shoe Repairing Machine Co. v. Dochtermann Storage Warehouse Co. (186 App. Div. 359) it was held that a third party claimant might not be brought in at the request of a party but that such a motion must be made by the person who claimed an interest in the property. This court by Page, J., said: “ Howth [third party claimant] has an ample remedy if he bona fide claims to be the owner of and entitled to possession of the chattels by availing himself of the provisions of sections 1709-1711 of the Code of Civil Procedure.* The defendant can protect his right, if he has any, under section 1704 of the Code,* or under section 103 of the General Business Law (Consol. Laws, chap. 20; Laws of 1909, chap. 25). Where the law has provided adequate remedy *4to a party I see no reason to permit the resort to other remedies to which the party is not entitled on some false idea of doing substantial justice.” The Civil Practice Act did not enlarge the remedy.
Accordingly, on principle and on the authorities, the order should be reversed, with twenty dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs.
McAvóy and O’Malley, JJ., concur; Finch, P. J., and Martin, J., dissent and vote for affirmance.
Now Civ. Prac. Act, §§ 1107-1109, 1103.—[Rep.