App. Div.] THIRD DEPARTMENT, MARCH TERM, 1897. balance should be paid the hay should not be removed from the premises of Deuel, the agreement being that payment of the purchase price of the property should precede delivery. The arrangement that the hay should not be removed from Deuel's premises, or be taken by Martin until the purchase price was paid, showed the intent of the parties that Martin could not have possession of the hay until he paid for it. It is a familiar doctrine that where, on a sale of personal property, it is agreed that payment therefor shall accompany or precede delivery, the title does not pass until the payment is made. (Empire State Type Founding Co. v. Grant, 114 N. Y. 40; Leven v. Smith, 1 Den. 571; Russell v. Minor, 22 Wend. 659; Hammett v. Linneman et al., 48 N. Y. 399; Thompson v. Leslie, 39 N. Y. St. Repr. 47.) Under the contract therefor a title to the hay would not pass to Martin until payment of the balance of the purchase price, which would authorize him to demand possession thereof, and he could convey no better right or title to the plaintiff than he himself possessed, the hay at the time of the transfer to the latter being on the premises and in the possession of Deuel. The plaintiff, therefore, failed to establish a right to the possession of the hay in question when the action was commenced. It was clearly shown that he had no such right. ASHHURST, J., in Gordon v. Harper (7 Durn. & E. 9, 12), says: "I have always understood the rule of law to be that in order to maintain trover the plaintiff must have a right of property in the thing and a right of possession, and that unless both these rights concur the action will not lie." The doctrine thus stated was approved by DENIO, J., in Hull v. Carnley (11 N. Y. 501–510). (And see same case, 17 N. Y. 202, and Clements v. Yturria, 81 id. 285.) It follows that the plaintiff, neither having the possession or the right of possession of the property in question at the time it was levied upon by the defendant, was not entitled to maintain the action. The property not having been taken by the defendant from the actual possession of the plaintiff, the defendant had the right to show that the title was in a third person without connecting himself with such title. (Spoor v. Jordan, 1 Alb. L. J. 123.) THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. It might be otherwise had the defendant taken the property from the actual possession of the plaintiff. (Wheeler v. Lawson, 103 N. Y. 40.) When the defendant levied on the hay, the plaintiff should have tendered the balance due on the contract with Deuel to the latter or his assignee, and he then would have been in the position to demand possession of the hay, and, if possession was refused, to commence an action for its conversion. As it is, he has undertaken to maintain an action for the conversion of property not in his possession, and to the possession of which, by the express terms of the arrangement between Martin and Deuel, he was not entitled. In the view thus taken it is not important to consider the effect of the sale by Deuel to Danford. I see no reason to doubt, however, that Deuel could lawfully transfer his interest in the hay in question to a purchaser, and that the latter would take the property subject to the rights of the plaintiff. Such a sale would not be a conversion of the property, or give the plaintiff any other or better right or title thereto than he derived by virtue of the original contract between Deuel and Martin. The judgment should be reversed and a new trial granted, costs to abide the event. All concurred. LANDON, J.: I concur. If plaintiff had any cause of action, it was against Danford for damages for destroying plaintiff's right to mature his title to and right of possession of the hay upon paying him thirtythree dollars, Danford having no right to remove it without first giving plaintiff an opportunity to protect his right. Judgment and order reversed and a new trial granted, costs to abide the event. App. Div.] THIRD DEPARTMENT, MARCH TERM, 1897. WILLIAM SOULS, Appellant, v. DAVID C. CORNELL and Others, Defendants. LEIGHTON MACHINE COMPANY, Respondent, v. DAVID C. CORNELL and Others, Defendants. Attachment - vacated as to all but one of several partners, it ceases to be a lien on the firm assets. Where, after an action has been begun against three persons, as partners and joint debtors, by service of process upon one of them, another action is commenced against the same persons, and an attachment, granted against all of them, and levied upon the firm property, is subsequently vacated as to two of them, such attachment is no longer a lien upon the firm property; and an execution, issued in the action first begun, against the personal property of the joint debtor previously attached in that action (and, if that were insufficient, against the partnership property of all the joint debtors), will have precedence in payment from the firm property over an execution subsequently issued under a judgment recovered in the action in which the attachment was sustained only as against one of the partners. APPEAL by William Souls, the plaintiff in the first above-entitled action, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 19th day of December, 1896, denying his application to compel the sheriff of Albany county to return an execution issued to him in the first above-entitled action, on the 24th day of February, 1896. Scherer & Downs, for the appellant. J. Newton Fiero, for the respondent. PUTNAM, J.: The plaintiff Souls commenced the first above-entitled action against the defendants as copartners, doing business under the firm name of D. C. Cornell & Co. A summons was served on the defendant Cornell only. Afterwards, on February 21, 1896, a judg ment was duly entered against all the defendants as joint debtors, and on February 24, 1896, execution was issued to the sheriff of Albany county requiring him to satisfy the same out of the perAPP. DIV.-VOL. XV. 21 THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. sonal property of David C. Cornell previously attached in the action, and, if that was insufficient, out of the partnership property of the judgment debtors. Such a judgment and execution were authorized by the provisions of sections 1932, 1934 and 1935 of the Code of Civil Procedure. The plaintiff in the second above-entitled action also commenced it against the defendants as copartners. An attachment was issued against all the defendants on the 17th day of February, 1896, and thereafter a levy was made on their joint property. On the 11th day of June, 1896, this attachment was vacated and set aside as to the defendants William J. Finch and Mary C. Gugerty. Judgment was entered in said action on May 8, 1896, and an execution issued thereunder to the sheriff of Albany county. That officer has in his hands, as the proceeds of the sale of the firm property of the defendants, the sum of $793.23. The plaintiff Souls moved in the court below to have such sum applied on his execution, and that the sheriff be directed to return the same. This appeal is taken from the order of the court below denying said motion. The plaintiff Souls having duly obtained judgment and issued execution thereon, which, under the provisions of the Code of Civil Procedure above referred to, could be enforced against the joint property of the defendants, was entitled to the order he sought for in the court below, unless the respondent obtained, under its attachment on the firm property of the defendants on the 17th day of February, 1896, a superior right to the money in the hands of the sheriff. The attachment obtained by the Leighton Machine Company having been absolutely vacated and set aside as to the defendants William J. Finch and Mary C. Gugerty, is to be regarded as if it had originally issued against the defendant David C. Cornell, one of the partners, alone. The vacation of the attachment against two of the three partners was an adjudication that it was not properly issued as against the firm property. The action having been brought against the three copartners, if the attachment was properly issued as against copartnership property, it could not have been vacated as to Finch and Gugerty. The attachment under which the Leighton Machine Company App. Div.] THIRD DEPARTMENT, MARCH TERM, 1897. claims the money in question now stands as only obtained against one of the members of the defendants' firm. It does not entitle the respondent to have the firm property of the defendants applied on its execution issued to the sheriff subsequent to the levy under the execution issued on the Souls judgment. (Bogart v. Dart, 25 Hun, 395; First National Bank v. Wallace, 4 App. Div. 382.) Under the attachment issued to the sheriff in the action in which the respondent was plaintiff, and which now remains as an attachment against one of the members of the firm of D. C. Cornell & Co., the officer was authorized to levy upon and take possession of the firm property; but he could only sell on an execution issued in such action, so far as any right was derived from the attachment, the individual property of said Cornell, and his interest in the firm property. (Smith v. Orser, 42 N. Y. 132; Atkins v. Saxton, 6 Wkly. Dig. 210; 1 Rumsey's Pr. 528.) We conclude that the plaintiff Souls, under his execution, has a prior claim to the money in the hands of the sheriff, and hence that the court below erred in denying his motion. The order should be reversed, with costs and disbursements, and the motion granted, with costs. All concur. Order reversed, with costs and disbursements, and motion granted, with costs. MARGARET CAVEN, as Administratrix of MARIA FORGIE, Deceased, Appellant, v. THE CITY OF TROY, Respondent. Negligence- — no recovery for an act of negligence not pleaded-charge as to what is a public highway a mistake in the treatment of an injured person is not a defense - certificate that a case contains all the evidence. In an action based upon the defendant's alleged negligence, the plaintiff cannot recover for an act of negligence not stated in the complaint. * * * In an action to recover for an injury sustained by the plaintiff upon one of the defendant's streets, a charge made by the court to the jury, that in order to set in operation the provision of the charter (that 'all streets used as such for five years continuously shall be deemed and taken to be public streets) it must appear that at the time the lands and premises were thrown out for a street, they were in the shape and for the purposes of streets and used |