Ethridge v. Orcutt — 12 N.Y. St. Rep. 372

Majority

p. 372

Alfred Ethridge et al., Pl’ffs, v. Edwin J. Orcutt et al., Def’ts.

(Supreme Court, Oswego Special Term,

Filed March 9, 1887.)

Headnote

Replevin >— Motion to set aside proceedings for irregularity— Proper practice—When motion must be made.

A motion, to set aside the proceedings, in an action of replevin, by-reason of defective papers, is not a common one, but is proper. The motion must be made promptly, and will be denied if not made until after the expiration of the three days during which the property may be reclaimed or exception made to the sufficiency of the undertaking, and after the property has passed beyond the control of the plaintiffs.

Motion by defendants to set aside replevin papers as void and for the return of the property replevied.

It was claimed that the papers were void by reason of defects in the affidavit. The papers were served with the summons and the property taken by the sheriff January 12, 1887: He held the property until January 15, 1887, and then delivered it to the plaintiffs. On the 25th day of January, 1887, the plaintiffs sold and disposed of the property, and January 31, 1887, the motion papers were served.

Eggleston & Crombie, for the motion; Oswald P. Backus and F. L. Wager, opposed.

Contended:

1. That a motion to set aside proceedings for irregularity must be noticed at once and before any further proceedings-have been had in the action by either side. 1 Whit. Pr., 444; 4 Wait’s Sup. Ct. Pr., 632.

2. The motion not having been made until after the three days had expired in which to reclaim the property or except to the plaintiffs’ sureties, the motion is too late. So held in order of arrest under the old Code before its amendment. Barker v. Dillon, 1 Code R. (N. S.), 206; 9 L. 0 ., 310.

In American Tool Co. v. Smith ( 32 Hun, 121 ), the record shows that the motion was made within three days.

2. If necessary, we ask leave to amend the affidavit. 1 Wait’s Sup. Ct. Pr., 745; 1 Whit. Pr., 445; 1 T. & S. Pr., 638; 1 Wait’s L. and Pr. ed. of 1865, 193; 1 Hill, 204 ; 2 Abb. Pr., 131 ; 3 How., 377 ; 2 How., 26 ; 8 Civ. Pro., 451, 453.

This remedy by motion is not a common one, but seems to have been held a proper one. O’Reilly v. Good, 42 Barb., 521 ; Amer. Tool Co. v. Smith, 32 Hun, 121 ; McAdam v. Walbrau, 8 Civ. Pro., 451.

p. 373

In some cases it would be quite necessaxy to have the matter disposed of on a motion, without waitixig for the final determination of the action. In this case, however, no such necessity exists, and the motion having been delayed so long, the property has passed beyond the control of the plaintiffs, and they can not. well return it to the defendants if ordered so to do. The motion ought to have been made more promptly. The defendants have the uxxdertaking given by the plaintiffs to rely upon, and this motion seems, therefore, to have been practically unnecessary and useless.

The affidavit I should say was defective,. and if the motion had been made more promptly, would very likely have resulted in setting aside the papers and proceedings.

Under the circumstances, I think a proper disposition of the motion is to allow the plaintiffs to file, by way of an amendment, the affidavit used upon this motion, axxd the motion thereupon to be denied, without costs to either party against the other.