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Agulnick v. Rauch

148 N.Y.S. 137 Court Argued June term, 1914, before SEABURY, PAGE, and BIJUR, JJ. Decision date 1914-06-18 English

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p. 137
AGULNICK v. RAUCH.
(Supreme Court, Appellate Term, First Department.
June 18, 1914.)

Headnote

Courts (§ 189[1] )—Municipal Courts—Replevin—Judgment.
Under Municipal Court Act (Laws 1902, c. 580) § 123, providing relative to actions of replevin that, if defendant has demanded judgment for the return of a chattel which was replevied and delivered to plaintiff, final judgment in his favor must award possession thereof, and the sum fixed as its value to be paid by plaintiff if possession is not delivered, the court has no power to grant judgment in defendant’s favor for a return of the chattels, or in default thereof judgment for their value, in the absence of a demand in the answer for judgment for the return of the chattels.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by Sam Agulnick against Fred Rauch. From- a judgment for defendant, after a trial by the court without a jury, plaintiff appeals.
Modified.
Argued June term, 1914, before SEABURY, PAGE, and BIJUR, JJ.
Rosansky & Goldberg, of New York City (Julius H. Rosansky, of counsel), for appellant.
Isador Silver, of New York City, for respondent.

The defendant did not demand judgment for the return of the chattels in his answer. Mun. Ct. Act, § 123. Therefore the court was without power to grant judgment in his favor for a return of the chattels, or in default thereof judgment for the value of the chattels against the plaintiff. Beck v. Schneider, 84 Misc. Rep. 23 , 145 N. Y. Supp. 1046 .

The judgment will therefore be modified, by striking therefrom those provisions, and, as modified, affirmed, without costs to either party of this appeal.

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