Majority
p. 624Cornelius D. Guyon et al., App’lts, v. John Rooney, Resp’t. (Supreme Court, General Term, Second Department, Filed December 9, 1889.)
Headnote
Justices’ court—Replevin—Code Civ. Pro., § 2933.An action to recover a chattel may be maintained in a justice’s court, although there has been no requisition.
Appeal from judgment of the Richmond county court, reversing judgment of justice’s court and dismissing complaint.
Action to replevin a chattel. On the return day of the summons both parties appeared. Plaintiff filed a written complaint .and defendant interposed an oral answer. The issues were tried by the justice, who rendered judgment for plaintiff.
Defendant appealed to the county court and demanded a new trial. Upon such new trial the proceedings were dismissed on •defendant’s motion on the ground that the constable had made no return to the requisition.
For the opinion of the general term referred to in this opinion, see 25 N. Y. State Rep., 326.
W. J. Powers, for app’lts; William M. Mullen, for resp’t.
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 which 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 § 3068 of Code of Civil Procedure, as stated in the opinion referred to.
Judgment reversed on opinion written at May term.
Barnard, P. J., and Dykman, J., concur.