Hyperlawhypertext legal databasebeta De Voe v. Selig 54 N.Y.S. 941

← Cases

De Voe v. Selig

54 N.Y.S. 941 Court N.Y. City Ct. Decision date 1898-12-07 English

Delivered by SCHUCHMAN, J.

Contents

Majority

p. 941
(25 Misc. Rep. 411.)
DE VOE et al. v. SELIG et al.
(City Court of New York, General Term.
December 7, 1898.)

Headnote

1. Replevin—Description.
A requisition and replevin writ does not “particularly describe the chattels to be replevied,” by a description: “11 cotton linings, 610 1/4 yds.; 9 cotton linings, 459 yds.; 3 6/4 woolen cloth, 201 4/8 yds.”
2. Amendment on Appeal.
Amendment of affidavit in replevin cannot be had on appeal from order refusing to set aside the writ, the appeal papers not showing it was asked for on argument of motion.
Appeal from special term.
Action by Charles De Yoe and another against Louis Selig and another. From an order denying a motion to vacate and set aside a requisition and replevin writ, on the ground that the same fails
p. 942
to comply with section 1695 óf the Code of Civil Procedure, in that it fails to particularly describe the chattels to be replevied, defendants appeal.
Beversed.
Argued before SCHUCHMAJST and OLCOTT, JJ.
M. D. Steuer, for appellants.
Blumenstiel & Hirsch, for respondents.

The chattels are described as follows: "11 cotton linings, 610 1/4 yds.; 9 cotton linings, 459 yds.; 3 6/4 woolen cloth, 201 4/8 yds.” This description is not sufficient to enable the sheriff to determine from it, with some degree of accuracy and intelligence, what he was required to replevy. Van Dyke v. Banking Co. (Sup.) 43 N. Y. Supp. 735 ; Schweitering v. Rothchild (Sup.) 50 N. Y. Supp. 206 .

In the case of McCarty v. Ockerman, 154 N. Y. 565 , 49 N. E. 153 , the court of appeals held the description sufficient; but that one is different from the one under consideration. No amendment of the affidavit can be allowed on this appeal, because the appeal papers do not show or recite that the same was asked for on the" argument of the motion.

Order reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

OLCOTT, J., concurs.

Cases cited