George H. Renton, Trustee, etc., Appellant, v. John Kelly, Sheriff, etc., Respondent

George H. Renton, Trustee, etc., Appellant, v. John Kelly, Sheriff, etc., Respondent. (Argued. May 11, 1872; decided September term, 1872.) This action was brought by plaintiff, as trustee, for the benefit of the creditors of one Andrew Campbell, against defendant, as sheriff of the county of New York, for levying and taking property held by plaintiff in trust under an execution against said Campbell. The property was part of the stock, tools and fixtures formerly owned and used by Campbell in carrying on the business of the manufacture of printing presses. In April, 1860, one Merritt, having a chattel mortgage upon the property in question, took possession of it under the mortgage ; thereupon Campbell transferred to him the residue of his stock, tools and fixtures, and under an agreement between them Merritt carried on the business until May 24, 1860, when a trvpa/rUte agreement was entered into between Campbell, Merritt and plaintiff, by which Merritt transferred and released to plaintiff all his interest in the property used in the business, except that covered by his mortgage. Campbell also transferred all the property, subject to the lien of the mortgage, upon certain trusts, for the benefit of creditors, which were void. Held, that under these facts plaintiff had no title and could not recover: 1st. Because by his complaint plaintiff claimed only as trustee for and by assignment from Campbell, which was void; 2d. That plaintiff proved no other right or title; that he could claim no title from Merritt, as the mortgage was expressly kept on foot and the lien retained; and the agreement, as far as Merritt was concerned, only restored the parties to the position of mortgagor and mortgagee; 3d. Nor could plaintiff claim any special property by reason of delivery by Merritt, as the latter claimed only a Hen; and if he placed the property in plaintiff’s possession, it was a mere deposit unaccompanied by any interest or right of property or possession, and gave no right to maintain an action. Joseph W. Howe for the appellant. A. J. Vanderpoel for the respondent. [MAJORITY — Hunt, C.,] Hunt, C., reads for affirmance. All concur. Judgment affirmed.