Sommer v. Greenberg — 60 N.Y. St. Rep. 852

Majority

p. 852

Rudolph Sommer, App’lt, v. Jacob Greenberg, Resp’t.

(New York City Court, General Term,

Filed June 20, 1894.)

Headnote

Pleading—Complaint—Replevin.

In an action of replevin against a sheriff, a statement' that the cause of detention is an alleged process in the hands of the sheriff against parties other than the plaintiff, sufficiently shows the cause of the wrongful detention.

A. A. Joseph, for app’lt; Samuel Campbell, for resp’t.

This is a motion by plaintiff for a new trial ' on exceptions taken at trial term on a dismissal of the complaint, to be heard in the first instance at general term. This action is brought in replevin, and was originally commenced against the sheriff, and the defendants were substituted as indemnitors. The

p. 853

complaint alleges that the plaintiffs were owners and entitled to the possession of certain goods and chattels. That the sheriff had possession of said property and wrongfully detained same from the plaintiff herein. That the sheriff’s ground of detention of said chattels was that he was entitled to possession by virtue of certain process issued to him as sheriff. That before the commencement of the action the plaintiff duly demanded from the sheriff a return of the property, which the said sheriff refused. That subsequently, and after the commencement of the action, an order was made substituting the present defendants in the place of the sheriff as defendants in this action. The answer is, in substance, a general denial. On the trial, and before any of the witnesses were sworn, the justice dismissed the complaint on the grounds:

First. That the complaint did not state facts sufficient to constitute a cause of action.

Second. That no action could be maintained on the facts set forth in the complaint, to which ruling an exception was d uly taken.

We think the trial justice erred. The complaint states facts sufficient to constitute a cause of action. It is claimed by defendant’s counsel that the complaint does not show the cause of the wrongful detention. A careful examination of the complaint convinces us that the plaintiff clearly states the cause of detention to be an alleged process in the hands of the sheriff against parties other than the plaintiff. But it is claimed that this action cannot be maintained under the decision of the court of appeals in Wise v. Grant, 140 N. Y. 593 ; 56 St. Rep. 496 . That case had no application here. The court of appeals simply held that there was a failure of proof in that case to entitle plaintiff to recover in replevin. In this case, however, there was no proof offered, and non-constat, but what plaintiff might have offered, the proof of the court of appeals in Wise v. Grant, supra, say is necessary to sustain an action in replevin where a sale is sought to be rescinded, to wit, notice of intention on the part of the vendor to rescind. For these reasons the order appealed from must be set aside, and a new trial granted, with costs to plaintiff to abide the event.

Conlan and Fitzsimons, JJ., concur.

Cases cited

Wise v. Grant 140 N. Y. 593 N.Y. 1894-01-16 p. 853