Gats v. Gats

Appellant was a party aggrieved, within the purview of section 557 of the Civil Practice Act, and was entitled to appeal from the order. (Hobart v. Hobart, 86 N. Y. 636 ; Posen v. Cowdin, 267 App. Div. 158 ; 6 Carmody on New York Pleading and Practice, § 63.) The writ of replevin must be vacated as there is no authority for its issuance in a purely equitable action to compel the performance of a trust. (Cf. Sager v. Blain, 44 N. Y. 445 , 450; Civ. Prac. Act, § 1094.) The order was also erroneous in that it directed the sheriff to take into his possession articles not specified in the replevin requisition (Bullis V. Montgomery, 50 N. Y. 352 , 356; cf. Lehman v. Mayer, 8 App. Div. 311 ) from a safe-deposit box maintained by a defendant together with one not a party to the action. (Matter of Ehrich v. Root, 134 App. Div. 432 ; Sanford v. Richardson, 176 App. Div. 199 .) Carples v. Cumberland Coal & Iron Co. ( 240 N. Y. 187 ) is not to the contrary. That case did not concern the question of the right to seize property under a writ of replevin;