Citation Numbers: 37 N.Y.S. 914, 92 Hun 19, 99 N.Y. Sup. Ct. 19, 73 N.Y. St. Rep. 42
Judges: Parker
Filed Date: 12/15/1895
Status: Precedential
Modified Date: 1/13/2023
Manifestly, the plaintiffs in this action stand in the position of a third party claiming goods that the defendant claims to
The plaintiffs in this action contend that in the process in question the only property described or directed to be taken is the property of “Parsons & Beach,” and that, inasmuch as the property in question did not belong to “Parsons & Beach,” it is not described, and is not included within the requisition. It is not to be supposed that William Beach, by the use of the phrase “goods,” etc., “of Parsons & Beach,” intended to describe the property which he sought to replevy, as being then owned by Parsons & Beach. A few sentences before this phrase occurs, he had sworn that such property was owned by himself, and that he was entitled to the possession thereof; and a few sentences thereafter he swears that such property was wrongfully detained from him by or on behalf of such firm. Bead in such connection, the fair interpretation of such affidavit is that by the phrase “the goods,” etc., of “Parsons & Beach,” was meant the property generally known as theirs, and that the property really intended to be described was all the property then in the building known as the “Birdsall Block,” at Whitney’s Point, which recently belonged to such firm, and which they still claim to own and hold. Being so construed, we do not think that the requisition issued upon such affidaAdt was invalid.
As against the firm of Parsons & Beach, or those claiming to hold for them, the sheriff would be protected in taking any property in the Birdsall Block, so formerly owned and then held and claimed by them. No trouble need arise as to his identifying the property intended. All property answering to that description was to be taken, and, if a dispute arose over any particular article, the question to be determined Avas simply whether it had formed part of their stock, and was still held and claimed by such firm. That was a fact which could
Although the plaintiffs in this action had, prior to the issuing of such writ, notified Parsons & Beach that they had rescinded the sale to them of the goods in question in this action, and had demanded from them a return thereof, nevertheless there had not as yet been any change of possession. The sheriff found such goods, when he executed the writ in question, in the Birdsall Block, in the possession of Parsons & Beach, and claimed by them to be a part of their stock, and there is no dispute but that they had been part of such stock intermediate the sale to them and its rescission by these plaintiffs. Nor is there any doubt but that the sheriff, the defendant in this action, took them upon such requisition, as part of the stock of Parsons & Beach, and made no claim to hold them, except by reason of such requisition. It is substantially so found in the ninth finding of fact, and so the evidence discloses. As against Parsons & Beach, the sheriff had the right so to take them; and, because of such right, they come within the provisions of sections 1709 and 1710 of the Code of Civil Procedure. They had been replevied by the sheriff, and hence no action to replevy them from him can be maintained. For this reason the judgment in the court below should be reversed, and a new trial granted, with costs to abide the event.
Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.