Lange v. Lewi — 32 N.Y. St. Rep. 418

Majority

p. 418

Edward Lange, App’lt, v. David Lewi, Resp’t.

(New York Superior Court, General Term

Filed June 27, 1890.)

Headnote

Replevin — Affidavit fob betubn of chattels.

The fact that the allegation, etc., in an affidavit for the return of chattels seized by a sheriff in replevin proceedings is made on information and belief is immaterial, as defendant is authorized to defend on information and belief when asserting the right of a third person to the chattels.

Appeal from order denying motion to compel the sheriff to deliver to plaintiff the chattels replevied by him in this action.

Action to recover certain book plates and illustrations, then in defendant’s possession, used in the publication of Bore’s Milton s “ Paradise Lost ” and in the works of Charles Dickens. On the same day a writ of replevin was issued to the sheriff of the city and county of Rew York, requiring him to take the property in question into his possession. Pursuant to the said writ the sheriff on the same day levied upon and seized all the above mentioned plates, and has since that time continuously remained in possession of "the same. On April 28, 1890, a notice of appearance for the defendant was served on plaintiff’s attorneys by George E. Horne, Esq., and on the same day a notice, affidavit and undertaking were served upon the sheriff purporting to require the return of the property replevied and then in the sheriff’s possession from the sheriff to the defendant, under § 1704 of the Code of Civil Procedure. A notice that the sureties upon this_ under

p. 419

taking would justify upon May 3d was at the same time served upon plaintiff’s attorneys.

Carter, Hughes & Cravaih, for app’lt; Hays & Creenbaum, for resp’t.

The court at special term delivered the following opinion:

The Code of Civil Procedure, § 1723, authorizes a defendant in an action for a chattel to defend on the ground that a third person was entitled to the chattel without connecting himself with the latter’s title. Section 1704 says that the 'affidavit required by that section must contain “ an allegation,” etc. There is such an allegation in the affidavit delivered to the sheriff. That it is made on information and belief is inmaterial, for he is authorized to defend on information and belief. Motion denied, with costs to abide event.

This is an appeal from an order denying plaintiff’s motion to compel delivery by sheriff to plaintiff of property which the sheriff, on plaintiff’s requisition, had taken in replevin. It appears that the defendant is a ware" mseman ; that he received the goods in question from one Alexander Agar on storage and issued his -receipt therefor, and that he prevented a delivery to the plaintiff by delivering to the sheriff the notice, affidavit and undertaking required by § 1704 of the Code of Civil Procedure. The affidavit was sufficient for the reasons stated by the learned judge below, and we can see no merit in any of the points raised by the appellant.

The order should be affirmed, with ten dollars costs and disbursements.

Freedman and O’Gorman, JJ., concur.