Hyperlawhypertext legal database Fitzpatrick v. Krause 58 N.Y.S. 283

← Cases

Fitzpatrick v. Krause

58 N.Y.S. 283 Court N.Y. App. Term Decision date 1899-05-24 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 283
FITZPATRICK v. KRAUSE.
(Supreme Court, Appellate Term.
May 24, 1899.)

Headnote

Liability op Sheriff—Replevin—Failure to File Claim.
One cannot maintain an action against an officer for property seized under replevin directed against a third person, without having previously filed an affidavit with the officer asserting his claim, as required by Code Civ. Proc. §§ 1709, 1710.
Appeal from municipal court, borough of Manhattan, First district.
Action by John A. Fitzpatrick against Bernath Krause. Judgment for plaintiff, and defendant appeals.
Beversed.
Argued before FBEEDMAF, P. J., and MacLEAN and LEVEN-TBITT, JJ.
Louis S. Finn, for appellant.
MacElkinny & Martin, for respondent.

Assuming, as claimed by the plaintiff in this action, that he (plaintiff) was the owner of the property taken under the writ of replevin by the defendant, as marshal of the city, in the action of B. Cohen against Feinberg Bros., while such property was in the apparent possession of the said defendants in the writ, the plaintiff could only maintain this action by a compliance with the provisions of Code Civ. Proc. §§ 1709, 1710; Consol. Act, § 1341 (Laws 1882, c. 410); Charter Greater New York, § 1428 (Laws 1897, c. 378). McCarthy v. Ockerman, 154 N. Y. 565 , 49 N. E. 153 . The record contains no proof of any such compliance.

Judgment must be reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

Cases cited