Guyon v. Rooney — 7 N.Y.S. 811

Majority

p. 811

Guyon et al. v. Rooney.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Replevin—Jurisdiction of Justice of the Peace.

Under Code Civil Proc. N. Y. § 2933, providing that “where the summons [in replevin in a justice’s court] has been personally served upon the defendant, or where-he appears, the justice must proceed to hear and determine the action, although, the plaintiff has not required the chattel to be replevied, ” a justice has jurisdiction, of an action to recover a chattel, though there has been no requisition.

Appeal from Richmond county court.

Action by Cornelius D. Guyon and Walter S. Guyon for the recovery of a horse, and damages for detention, commenced before a justice of the peace. The return shows no requisition in the justice’s court, or return thereof. The summons was personally served. On the return of the summons the plaintiffs made a formal written complaint by their attorney, setting forth, their ownership of the horse, the wrongful taking and detention thereof, its value, and .$100 damages, and asked for judgment for the delivery of the property, and for the recovery of the damages, with costs. Defendant appeared, and interposed an answer to the merits, and pleaded the want of a return to tile requisition by the constable, predicating thereon an objection tattle jurisdiction of the justice. Thereupon the justice tried the case on the merits, and entered a judgment in plaintiffs’ favor for the delivery of the horse, and for $50 damages, with $3.15 costs. Defendant appealed to the-county court, and demanded a new trial. On the new trial before the county court, defendant moved to dismiss the action for the alleged want of jurisdiction, and the court granted his motion, and, without further proceedings, entered judgment reversing the justice’s judgment, and dismissed the action* with $74.14 costs. From this judgment plaintiffs appeal. For former report, see 6 H. Y. Supp. 99.

Argued before Barnard, P. J., and Dyicman and Pratt, JJ.

W. J. Powers, for appellants. William, M. Mullen, for respondent.

This case came before us at the May general term, but the-papers were not properly certified, so that a decision could be properly rendered. We, however, expressed our views upon the merits of certain questions, vyhich must, if adhered to, determine this appeal. We see no reason to change the views expressed at that general term, which lead to a reversal, of the judgment, and sending the case back for trial in the county court upon the merits, under section 3068, Code Civil Proc., as stated in the opinion referred to. Judgment reversed, on opinion written at May term. All concur..