Grifenhagen v. Whilden & Hancock

Headnote

Grifenhagen v. Whilden & Hancock, 168 App. Div. 912 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 26, 1915, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court.

On January 27, 1913, Frank L. Randall commenced an action against the Italiana Insurance Company upon two policies of fire insurance; a warrant of attachment was issued and on January 28, 1913, the sheriff of New York county levied upon $2,000, in the possession of Whilden & Hancock, New York, the defendants in this action. The sheriff left this property in the possession of the defendants, and took a receipt therefor. The action against the Italiana Insurance Company, the attachment debtor, proceeded to judgment, and on April 15, 1913, an execution was issued to the sheriff of New York county against the property levied upon by virtue of said attachment. Following a demand and refusal, Julius Harburger, as sheriff of New York county, commenced this action under section 655 of the Code of Civil Procedure. Before the same came on for trial, his term of office as sheriff expired, and he died. Upon the . express consent of the defendants, an order was entered, substituting Max S. Grifenhagen, as sheriff of the county of New York, as plaintiff. "Thereafter, upon motion, Frank L. Randall, the plaintiff in the attachment action, was added as a co-plaintiff in this action. Upon the trial the defendant offered testimony to show that the property levied upon did not belong to the attachment debtor, and the exclusion of this evidence presented the sole point upon the appeal from the judgment herein.