McCobb v. Christianson — 59 N.Y.S. 187

Majority

p. 187

McCOBB v. CHRISTIANSON.^[1]

(City Court of New York,

General Term.

March 29, 1899.)

Headnote

Replevin—Demand for Return—Answer.

Code Civ. Proc. § 1725, providing that, in replevin, defendant shall serve on plaintiff’s1 attorney a notice of a demand for judgment for the return of the chattel, and on the trial a copy of the notice shall he furnished the court, is permissive, and not mandatory; and, where the answer contains a demand, it is sufficient.

Appeal from special term, New York county.

Action by Ada McCobb against Simon Christianson. Judgment for defendant, and plaintiff appeals.

Affirmed.

Argued before-McCAKTHY and SOHUCHMAN, JJ.

Franldin Bien, for appellant.

Harris & GolcLfarb, for respondent.

After a careful examination, I am of the opinion that section 1725 of the Code of Civil Procedure is clearly permissive, and not mandatory, and that where, as claimed and conceded in this-case, the answer contained a demand for the return of the chattel taken by the plaintiff' under a writ of replevin, it was not necessary to serve notice, mentioned in section 1725, in order to obtain a return of the chattel. This was intended for one who had failed to-demand the return of the chattel in his answer. There can be no reason for a demand for the return of the chattel in the answer, which is part of the pleading, and again in a separate notice. All the court requires to know is that a return of the chattel is demanded. Besides, the plaintiff is clearly guilty of loches, in that it appears that judgment by default was rendered on June 9,- 1894, and the motion to-vacate and set aside the judgment taken by default was not made until June 4, 1896. I fully concur with VAN WYCK, C. J.

Order affirmed, with costs.

SOHUCHMAN, J., concurs.