Mahr v. Livingstone , 106 N.Y.S. 308 ( 1907 )

Greenbaum, J.

Replevin is essentially a possessory action, and it is requisite for the maintenance thereof that the defendant should be in possession or control of the chattels sued for at the time the action is commenced, except Avhere the same have been wrongfully disposed of. Sinnott v. Feiock, 165 N. Y. 444; Wheeler v. Allen, 51 id. 37, 42; Christie v. Corbett, 34 How. Pr. 19; Alaske Untersteutzung Verein v. Wall, 28 Misc. Rep. 174. It is undisputed that at the time that this action was commenced the chattel sought to be recovered was not in the possession or control of defendant, but on the contrary that the same was in the actual possession of plaintiff. Under these circumstances the complaint must.be dismissed upon the merits.

Complaint dismissed upon the merits.