Schwabeland v. Holahan — 26 N.Y.S. 880

Majority

p. 880

SCHWABELAND et al. v. HOLAHAN, Marshal.

(City Court of New York, General Term.

December 8, 1893.)

Headnote

Appeal—Objections not Raised Below.

Failure to submit a question to the jury is not error where no request therefor was made.

Appeal from trial term.

Action by Henry Schwabeland and another against Edmund P. Holahan, as one of the marshals of Hew York city, to recover possession of stock and fixtures of a grocery store seized by defendant under execution against William McGaw. There was a judgment in favor of plaintiffs, and defendant appeals.

Argued before EHRLICH, C. J., and NEWBURGER, J.

Charles S. Bloomfield, for appellant.

Forster, Hotaling & Klenke, for respondent.

The action is in replevin to recover the possession, of certain goods and chattels. The defendant, who is a city marshal, justifies under an execution issued to him against one William McGaw. The adjudication in the superior court, in the action wherein McGaw was plaintiff and the plaintiffs herein were defendants, determined that, as between the parties to that record, the sale on which the plaintiffs base their title was a valid one. Whether the sale was valid as against the judgment creditors of McGaw is the real question to be determined here. There was no request to submit that question to the jury, and consequently no error committed in omitting to do so. The levy by the marshal is alleged in his answer, and was proved at the trial. The plaintiffs certainly made out a case sufficient to require its submission to the jury, and their verdict is satisfactorily sustained by the proofs. We find no force in the errors assigned by the appellant, and the judgment must be affirmed, with costs.'