Mahr v. Livingstone — 106 N.Y.S. 308

Majority

p. 308

(55 Misc. Rep. 133.)

MAHR v. LIVINGSTONE.

(Supreme Court, Trial Term, New York County.

June, 1907.)

Headnote

Replevin—When Maintainable.

Plaintiff, in actual possession of personalty, cannot maintain replevin therefor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Replevin, § 81.]

Action by Caroline S. Mahr against William H. Livingstone. Judgment for defendant.

A. Thain, for plaintiff.

Wesselman & Kraus, for defendant.

Replevin is essentially a possessory action, and it is requisite for the maintenance thereof that the defendant should be in possession or control of the chattels sued for at the time the action is commenced, except where the same have been wrongfully disposed of. Sinnott v. Feiock, 165 N. Y. 444 , 59 N. E. 265 , 80 Am. St. Rep. 776 ; Wheeler v. Allen, 51 N. Y. 37 , 42; Christie v. Corbett, 34 How. Pr. 19 ; Alaske Untersteutzung Verein v. Wall, 28 Misc. Rep. 174 , 58 N. Y. Supp. 1115 . It is undisputed that at the time that this action was commenced the chattel sought to be recovered was not in the possession or control of defendant, but, on the contrary, that the same was in the actual possession of plaintiff. Under these circumstances the complaint must be dismissed upon the merits.

Complaint dismissed upon the merits.

Cases cited

Sinnott v. Feiock 165 N. Y. 444 N.Y. 1901-02-01 p. 308
Wheeler v. Allen 51 N. Y. 37 N.Y. Comm'n App. at 42 p. 308
Christie v. Corbett 34 How. Pr. 19 N.Y. Sup. Ct. p. 308