(dissenting):
The action was replevin to recover the possession of two printing presses, a quantity of type and other printers’ supplies, machinery and fixtures, sold and delivered by the plaintiff to Guy Tremelling in the early part of March, 1886. The sale was made pursuant to an agreement that $500 should be paid upon the purchase, in cash, and the residue, amounting to a still larger sum, should be secured by a chattel mortgage upon the property, and payable twenty-five dollars, or more, every month. The property was in part delivered, when the purchaser paid the sum of. $250 in cash upon it, and promised to pay a like sum shortly afterwards. The residue of the property sold was delivered, and when it was all in, the plaintiff’s president went to the office of Mr. Tremelling for the residue of the cash and the mortgage. Tremelling was not there, but was found to have absconded, and on the next day it was stated that the property had been attached by the sheriff, under an attachment issued in favor of William Scott against Tremelling. Upon these facts appearing through the evidence, the court directed a verdict for the defendant, assessing the value of the property at $1,100.95, as that was stated in the complaint. This direction of a verdict in favor of the defendant was probably regular, for the reason that the attaching creditor had the right under his attachment to seize and appropriate the interest of Tremelling in the property. And he had acquired an interest to the extent of $250, the amount paid by him on the purchase-price, and the partial delivery of the *438property by the plaintiff to him; and if the property had been worth more than the purchase price, the excess in value would be likewise 'available in favor of the attaching creditor. But as by the terms of the sale $250 was still to be paid in cash upon the price, and a mortgage given to secure the residue, the plaintiff was entitled to a lien upon the property as a security for the performance of these stipulations. They were conditional in their nature, requiring their performance before the absolute and unqualified title to the property would vest in the purchaser. (1 Pars, on Con. [6th ed.] 537, 538; Husted v. Ingraham, 75 N. Y., 251, 257.) And this lien, as long as it was not waived, would exist not only against the purchaser himself, but also against other persons not bona fide purchasers from him for value. (Comer v. Cunningham, 77 N. Y., 391.)
There was no waiver of this lien by any delay or credit being given to the purchaser, for the vendee sought him at his office to obtain the fulfilment of the agreement as soon as the property had been all delivered. And it would therefore be an unwarrantable construction to be placed upon his acts, to presume that he intended to dispense with the immediate performance of any part of the agreement by the purchaser. This lien of the vendor was a special property in the goods and it was the duty of the court to sustain it in his favor, and the plaintiff could not be deprived of it by the seizure of the pi’operty under an attachment for a debt owing by the purchaser. For under such process the creditor can seize no more than the title and interest of his debtor in the goods. And when the plaintiff failed to maintain the action for the recovery of the possession of the property, their assessed value in favor of the defendant as the representative of the attaching creditor should, for that reason, not have exceeded the value of the interest of the purchaser in the goods.
The court seems to have taken a different view of the rights of. the parties under the language of section 1726 of the Code of Civil Procedure, which has directed, generally, where the verdict awards to the prevailing party the chattel which has been replevied and afterwards delivered by the sheriff to the unsuccessful party, or to a person not a party, it must also, except in a case specified in the Dext section, fix the value of the chattel at the time of the trial. *439Tbe next section so referred to does not expressly include tbis case, although in its second subdivision, it proceeds upon a principle which will entitle the successful party to no more than the value of his interest in the property, where the defeated party also has a special property in the articles. But while the first section which has been mentioned directs the verdict, report or decision, to fix the value of the chattel at the time of the trial, it could not have been designed that it should be literally construed, but must have been intended to be adapted to the peculiar features of the cases arising under it. and to have expressed in greater brevity than it should have done, what the value of the chattel was designed to be, which is mentioned in the section. It may very well be satisfied by requiring the verdict, report or decision, to fix no more than the value of the interest of the successful party in the chattel, whateyer they may prove to be. It is not unfrequent that statutes are enacted with these elliptical defects. And this omission should be supplied in this instance by construction. For it cannot be supposed that the Legislature designed by this section to oblige the unsuccessful party not only to respond for the interest of his adversary in the property, but pay over to him the value of his own interest also. That would be excessively unjust, and while it may be within the letter of the statute, it should not be presumed to be within its spirit which it is well established must control its direction. The Revised Statutes provided in general and more flexible language what should be done upon the recovery of a verdict in an action of replevin. Where the plaintiff succeeded, he was declared to be entitled to a judgment for damages and costs, as well as for the delivery of the property to him, where that had not previously been made, or in default thereof to recover from the defendant the value of such goods and chattels as the same shall have been assessed by the jury on the trial, or upon the writ of inquiry. When the defendant recovered in such action he was entitled to a return of the goods and chattels replevied, and also the damages sustained by him by reason of the detention of such goods and chattels. (3 R. S. [6th ed.], 836, §§ 13, 16.)
The Code of Procedure in its enactment by section 277, seems to have been designed to group together the substance of these sections of the Revised Statutes, which in a case where the defendant recov*440ered, it was declared that the judgment should be for a return of the property, or the value thereof, in case a return could not be had, and damages for taking and withholding the same. This provision as to the value of the property was as mandatory as that which is now contained in the Code of Civil Procedure, and a like rule was applied to the case of a successful plaintiff. The assessment in each case beyond the damages for detention was directed to be for the value of the property. Yet it has been held by the courts by •way of construing these several statutory provisions, that when the plaintiff recovered on a special title or interest in the property replevied, against the general owner, that the value to be assessed should be restricted to the value of that special interest. (Fitzhugh v. Wiman, 5 Seld., 559; Townsend v. Bargy, 57 N. Y., 665; Allen v. Judson, 71 id., 77.) It is true that this principle was not applied in Buck v. Remsen (34 N. Y., 383), but the point of its application was only passingly mentioned in the decision, and it is accordingly entitled to no special weight against these other cases. This rule has been very generally applied in controversies over the title to personal property, and actions for its conversion have, therefore, been considered to be within its control. (Parish v. Wheeler, 22 N. Y., 494, 511, 512.) It is not only just and equitable, but a different rule would be strikingly unjust, for it would have the effect of arbitrarily taking one person’s property,without any reason for it, and giving it to another. It is true that the cases which have been cited applied the rule only in favor of the plaintiff, but that does not deprive them of their effect as sustaining the application of an equally sound rule of law to the action when it may be determined in favor of the defendant, for the lights of the defendant, under the Revised Statutes and under the Code of Civil Procedure, were cared for and provided for by language similar in its effect. If the plaintiff recover the value to be assessed is, by the Code of Procedure, directed to be the value of the property, and if the defendant recovers it is still the same direction to assess the value of the property. And as the courts have heretofore applied this principle of construction to the cases of successful plaintiffs there is precisely the same reason for applying it to the case of a successful defendant, and the Code of Civil Procedure, using nearly the same language, should be construed in the same way. That will *441secure no other than a just result, which must have been within the intention of the legislature.
The plaintiff can derive no benefit from the omission in the proof that the notice mentioned in section 1725 of the Code of Civil Procedure was not proven to have been served by the defendant’s attorney, for no objection to its omission was tafeen during the trial, when proof of the fact might have been supplied if it had been important. The case was, on the contrary, tried upon the rights and interests of the respective parties in the property as they appeared and were supported by the evidence and the application of the law to such rights, and it is now too late to gain any advantage by the absence of proof of a compliance with this section. But as the assessment of- the value of the property was unwarranted by the proof beyond the interest or right which the sheriff had acquired in it under the attachment, which did not exceed the value of the interest of the purchaser, the judgment should be reversed and a new trial ordered, with costs to abide the event, unless within twenty days after notice of the decision the defendant stipulates to reduce that verdict to the sum of $250, with interest thereon from the commencement of the action and the additional allowance of costs should be reduced in a corresponding manner. If such stipulation shall be served, then the judgment as so reduced will be affirmed, without costs of the appeal to either party.
Judgment affirmed, with costs.