Schwabeland v. Holahan — 56 N.Y. St. Rep. 600

Majority

p. 600

Henry Schwabeland et al., Resp’ts, v. Edmund P. Holahan, Marshall, etc., App’lt.

(New York City Court, General Term,

Filed December 8, 1893.)

Headnote

Trial—Request to submit.

When there is no request to submit a question to the jury, no error is committed in omitting to do so.

Appeal from judgment entered on verdict in favor of plaintiff.

Charles S. Bloomfield, for app’lt; Forster, Hotaling & Klenlee, for resp’t.

The action is in replevin to recover the possession of certain goods and chattels. The defendant, who is a city marshal, justified under an execution, issued to him against one William McGaw. The adjudication in the superior court, in the action wherein McGaw was plaintiff and the plaintiff’s herein were defendants, determined, that as betetween the parties to that record, the sale on which the plaintiffs base their title was a valid one. Whether the sale was valid as against the judgment creditors of McGaw was the real question to be'determined here. There was no request to submit that question to the jury, and consequently, no error committed in omitting to do so. The levy by the marshal is alleged in his. answer and was proved at the trial. The plaintiffs certainly made out a case sufficient to require its submission to, the jury, and their verdict is satisfactorily sustained by the proofs.

We find no force in the errors assigned by the appellant, and the judgment must be affirmed, with costs.

Rewburger, J., concurs.