Bame v. Seykora — 28 N.Y.S. 930

Majority

p. 930

BAME v. SEYKORA.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Headnote

Replevin—Right to Possession—Pbtma Pacie Evidence.

Where plaintiff establishes a prima facie title and right to possession, and there is no evidence as to how defendant came into possession of the chattel, plaintiff is entitled to recover.

Appeal from Schenectady county court.

Action by John H. Same against Anton Seylcora to recover the possession of a chattel. There was a judgment in favor of defendant, and plaintiff appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

p. 931

Jacob W. Clute, for appellant.

Louis M. King, for respondent.

An action to recover the possession of a chattel may be brought before a justice of the peace, without taking proceedings to require the replevining of the chattel before judgment. Code Civ. Proc. §§ 2919, 2933, 3038; Delin v. Stohl, 2 Civ. Proc. R. 222; Guyon v. Rooney (Sup.) 6 N. Y. Supp. 99 . The plaintiff established a prima facie title, and the right to the possession of the property in question, against every one except a bona fide purchaser. There is no evidence in the case to show how the defendant came into the possession of the property,—whether he stole it, took it for debt, or purchased it. Plaintiff having established a prima facie title and right to the possession of the property, it is incumbent upon the defendant to show how he came into the possession of it. The judgment of the county court should be reversed, and a new trial ordered, costs to abide the event. All concur.