Acker v. Finn — 5 Hill & Den. 293

Majority

p. 293

Acker and another vs. Finn and another.

Headnote

A replevin bond duly executed to the coroner, may be assigned by him pursuant to 2 JR. S. 533, § 64; and the assignee may sue thereon in his own name.

Demurrer to declaration on a replevin bond. Finn sued out a writ of replevin against the plaintiffs in this suit, which was executed by one of the coroners of the city and county of New-York, Acker being sheriff. The usual bond was given to the coroner, executed by Finn and two sureties. Judgment -was rendered in favor of the defendants in that suit for the sum of $2891,16 damages and costs, and, after failing to collect the amount by execution, they procured an assignment of the bond from the coroner and commenced the present action against the obligors. The defendants demurred to the declaration, specifying for cause, among other things, that the coroner was not authorized by law to assign the bond, and that the suit should have been brought in his name. The plaintiffs joined in demurrer.

M. T. Reynolds, for the defendant,

insisted that, even if the coroner might assign the bond, the assignee coul d only acquire the right of suing in his own name by virtue of some express statutory enactment, like that contained in 2 R. S. 349, §12; and there

p. 294

being none applicable to this case, the suit should have been in the name of the coroner. He cited and-cqnpnented on-1 R. L. 95, §12; 2 R. S. 441, § 84; id. 533, § 64.

N. B. Blunt, for the plaintiffs,

cited Cowden v. Pease, ( 10 Wend. 333 .)

said the' bond was clearly assignable by the coroner, and the action well brought. (2 R. S. 533, § 64; id. 441 , § 84.)

Judgment for the plaintiffs.

Cases cited

Cowden v. Pease 10 Wend. 333 N.Y. Sup. Ct. p. 294