Oppenheim v. Lewis — 46 N.Y.S. 765

Majority

p. 765

OPPENHEIM v. LEWIS et al.

(Supreme Court, Appellate Division, First Department.

August 4, 1897.)

Headnote

Replevin—Return of Property to Defendant.

Where attached property was replevied from the officer, who defaulted for want of an answer, and the attachment creditors were made parties defendant, but the complaint in replevin was afterwards dismissed as to them, they were not entitled to have a judgment rendered directing a return of the property to the officer.

Appeal from special term, Hew York county.

Replevin by Leo Oppenheim against Edward J. H. Tamsen, as sheriff of the city and county of Hew York. The sheriff had levied upon the property in suit by virtue of certain writs of attachment issued at the suit of Jacob Lewis and Morris Fordinsky. The attaching creditors were subsequently made parties defendant on their application, but the complaint in replevin was afterwards dismissed as to them. The sheriff defaulted for want of an answer, and afterwards made a motion to be allowed to come in and defend, but the motion was denied. Subsequently, on motion of said Lewis and Fordinsky, an order was made directing the return of the property to the sheriff, and plaintiff appeals.

Reversed.

Argued before RUMSEY, WILLIAMS, PATTERSOH, O’BRIEH, and PARKER, JJ.

W. F. Severance, for appellant.

A. A. Joseph, for respondents.

It appears from the papers in this case that the complaint was dismissed as to the defendants Lewis and Fordinsky on the 25th of August, 1896. The order dismissing that complaint reserved no right to make further application, and that order stands without modification. Subsequently, and on the 2d of October, 1896, a motion for the same relief which was granted herein was made at a special term held by Mr. Justice Russell, who denied the motion, and that order stands unappealed from and unreversed.

p. 766

That order is a conclusive decision against the right oí the defendants to have the relief which they asked for here. The question as to the right to grant such relief in an action of a similar nature was submitted to the court in the case of Sheehan v. Golden, 85 Hun, 462 , 33 N. Y. Supp. 109 , in which it was held that the defendants other than the sheriff, upon dismissal of the complaint, were not entitled to judgment that the goods replevied he delivered to the sheriff.

For these reasons, the order should be reversed, with $10 costs and disbursements.