Fitzpatrick v. Krause , 58 N.Y.S. 283 ( 1899 )

FREEDMAN, P. J.

Assuming, as claimed by the plaintiff in this action, that he (plaintiff) was the owner of the property taken under the writ of replevin by the defendant, as marshal of the city, in the action of B. Cohen against Feinberg Bros., while such property was in the apparent possession of the said defendants in the writ, the plaintiff could only maintain this action by a compliance with the provisions of Code Civ. Proc. §§ 1709, 1710; Consol. Act, § 1341 (Laws 1882, c. 410); Charter Greater New York, § 1428 (Laws 1897, c. 378). McCarthy v. Ockerman, 154 N. Y. 565, 49 N. E. 153. The record contains no proof of any such compliance.

Judgment must be reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.