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Lyons v. Mulvihill

125 N.Y.S. 475 Court N.Y. App. Term Decision date 1910-11-11 English

Delivered by BIJUR, J.

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p. 475
LYONS v. MULVIHILL, City Marshal.
(Supreme Court, Appellate Term.
November 11, 1910.)

Headnote

Courts (§ 189[1] )—Municipal Courts—Replevin—Claim by Third Person— Affidavit—Necessity for.
Plaintiff cannot maintain an action against the marshal of the city of New York to recover chattels, where he had not served upon defendant the affidavit required by Municipal Court Act (Laws 1902, c. 580) §§ 118, 114, providing that in a suit of replevin, if a third party claims a right to the possession of the property, he must deliver to the sheriff an affidavit of his claim, specifying the chattels in controversy.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Pincus Lyons against Matthew F. Mulvihill, City Marshal of the City of New York. Judgment for plaintiff, and defendant appeals.
Reversed, and new trial ordered.
Argued before SEABURY, PAGE, and BIJUR, JJ.
Philip S. Saitta, for appellant.
Jacob H. Corn, for respondent.

The defendant is a marshal of the city of New York, and this action is brought against him for refusing to turn over certain property to the plaintiff, who claims to be the owner thereof. Aside from all other questions, it does not appear that any affidavit ■of claim was served on the defendant, in accordance with sections 113 and 114 of the Municipal Court act (Laws 1902, c. 580).

As this is a prerequisite to maintaining the action (McCarthy v. Ockerman, 154 N. Y. 565 , 49 N. E. 153 ; Hastings v. Nagel, 83 Hun, 205 , 31 N. Y. Supp. 598 ), the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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