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Finehout v. Crain

4 Hill & Den. 537 Court N.Y. English

Delivered by Nelson, Ch. J.

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Majority

p. 537
Finehout vs. Crain, sheriff, &c.

Headnote

A summons in replevin need not specify the property sought to be recovered; and if it do so, that part of if may be rejected as surplusage.
Where, in replevin, several articles of property were described in the writ, but, in consequence of directions given by the plaintiff, a part of them only was seized by the officer; held, that the plaintiff might nevertheless include the whole in his declaration, and this, though the summons served described the articles seized, without mentioning the residue.
Replevin. The writ was for detaining one canal boat and its furniture, two sorrel horses, two brown horses and two sets of double harness, the goods and chattels of the plaintiff. The coroner, by direction of the plaintiff, seized only .the canal boat and the two sorrel horses ; and the summons served upon the defendant mentioned no other property than that so actually seized. The coroner returned that he had replevied, taken and delivered to the plaintiff the boat and sorrel horses, and had served the defendant with a copy of the “ annexed summons,” which enumerated all the articles of property mentioned in the writ. It appeared by the coroner’s affidavit that he inadvertently neglected to erase from the summons so returned by him, the goods not' seized, as was done in the copy served. The plaintiff declared in the detinet for all the property mentioned in the writ.
p. 538
D. Burwell, for the defendant,
moved that the plaintiff be ordered to strike out of the declaration such articles of property as were not seized, so as to make the declaration conformable to the copy of the summons served upon the defendant.
JV. Hill, jr, contra.

By the Court,

The statute does not require that the property should be specified in the summons j (2 R. S. 524, § 9; Cutler v. Rathbone, sheriff, &c. 1 Hill, 204 ;) and the description of it contained in the one delivered in this case, may therefore be rejected as surplusage. There is then no irregularity on the face of the papers.

The return of the coroner shows that only a part of the goods described in the writ was taken and delivered to the plaintiff j but this will not prevent him from proceeding in respect to the whole of the property, as we held in the recent case of Snow v. Roy, ( 22 Wend. 602 .)

Motion denied.

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