Martin v. Miller — 230 A.D. 401

Majority

p. 401

Clarence N. Martin and Another, Respondents, v. Nina Sprague Miller and Others, Appellants, Impleaded with James O. Sebring, Defendant.

Fourth Department,

October 10, 1930.

p. 402

Sebring & King [James 0. Sebring of counsel], for the appellants.

Mordecai Casson, for the respondents.

Respondents’ original complaint in replevin states a complete cause of action inasmuch as it alleges demand before action brought, and that defendants’ levy was made against the protest of respondents (chattel mortgagees) and with full notice of respondents’ rights. Respondents were entitled to possession of the property as against the sheriff, even if the judgment upon which the levy under execution was based was valid, there being no claim that respondents’ chattel mortgage was fraudulent or void. (Civ. Prac. Act, § 1089, subd. 3; Leadbetter v. Leadbetter, 125 N. Y. 290 ; Crutts v. Daly, 84 Misc. 192 .)

The new allegations in the proposed substituted complaint are immaterial, and the order granting permission to serve another complaint and giving respondents a trial preference should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

Order entered April 25, 1930, reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Cases cited

Leadbetter v. N. H. Leadbetter 125 N. Y. 290 N.Y. 1891-01-13 p. 402
Crutts v. Daly 84 Misc. 192 N.Y. Sup. Ct. p. 402