Majority
p. 531John Owens, Appl’t, v. Richard Flynn, one of the Marshals of the City of New York, Resp’t. (New York Common Pleas, General Term, Filed February 5, 1894.)
Headnote
Appeal—Reversal.A judgment, which is not secundum allegata et probata, cannot stand.
Appeal by the plaintiff from a judgment of the district court in the city of Flew York, for the eleventh judicial district, rendered by the justice thereof, without a jury, in favor of such plaintiff for the sum of forty dollars damages, besides five dollars and fifty cents costs.
Action to recover damages for the conversion of property alleged to have been held by the plaintiff as lienor and pledgee, by reason
p. 532
of which conversion, his lien was destroyed. The facts are stated in the opinion.
W. Arrowsmith, for the app’lt; Clarence A. Sears, for the resp't.
The plaintiff’s lien as stable-man for the sum of $160 was perfected in accordance with the requirements of the statute, Laws of 1892, chap. 91; Eckhard v. Donohue, 9 Daly, 214 ; Lessels v. Farnsworth, 13 id., 473, and no evidence upon which a reduction of the damages by $120 can be based, appears from the record. It is unnecessary to consider whether the liens claimed by the plaintiff as warehouseman and pledgee were sufficiently established, as the judgment cannot stand in any event, not being secum'dum allegata et probata. Fuld v. Kahn, 4 Misc. Rep., 600 ; 24 N. Y. Supp. 558 ; 54 St. Rep., 134 .
The judgment should be reversed, and a new trial ordered, with costs to the party there prevailing.