Depew v. Beakes

Headnote

Replevin by Seller after Rescission—Right of Possession.

A seller, on rescinding the sale, becomes at once entitled to the possession o£ the goods, so as to entitle him to bring replevin (Code Civ. Proc. § 1690, subd. 3), though they have been seized under attachment.

Appeal from Orange county court.

Beplevin by Edward D. Depew and others against Adam W. Beakes, sheriff of Orange county. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

The opinion of Hon. JOHN J. BEATTIE, County Judge, is as follows:

Under section 1690 of the Code of Civil Procedure, as it existed when the case of Wise v. Grant, 140 N. Y. 593 , - 35 N. E. 1078 , was decided, the only effect of the seizure by the plaintiff in the attachment was to cut off the remedy by replevin, if, at the time of such seizure, the seller of the goods levied on had not rescinded the sale. The fact that such remedy was denied the seller did not leave him remediless. After the seizure, he was still entitled to rescind, and, upon such rescission, to maintain an action for conversion against the sheriff. 140 N. Y. 596 , 35 N. E. 1078 . The legislature seems to have recognized the fact that if the seller, by his own acts, might create the right to maintain an action for conversion, there was little, if any, reason why such an act should not authorize the maintenance of an action for the recovery of the property seized, instead of its value. By an amendment of 1894, the wording

of subdivision 3 of section 1690 of the Code was changed, so that the remedy by replevin is denied only in cases where at the time of the commencement of the action the plaintiff had not the right to reduce the property into his possession. By that amendment, the cases cited by the appellant, and which, upon the argument, seemed conclusive in his favor, become inapplicable to the facts in this case. The plaintiffs, before commencing this action, but after the seizure by the defendant, rescinded the sale for fraud, and gave notice of such rescission to him. Upon such rescission the plaintiffs’ rights of possession accrued at once ( 140 N. Y. 596 , 35 N. E. 1078 ); and they were then within the terms of section 1690 of the Code, and entitled to maintain their action.

The judgment should be affirmed, with costs.