73 N.Y.S. 580 | N.Y. App. Div. | 1901
When this cause came on for trial and immediately upon the jury being impanelled, counsel for the defendant moved to dismiss the complaint. That motion was granted, and from the j udgment entered thereupon the plaintiff appeals. There are two branches of the action as set forth in the complaint, although they are not stated as separate causes of action. The first is to recover a penalty under section 1707 of the Code of Civil Procedure; the second to recover damages for alleged wrongful conduct of the defendant as sheriff in releasing property which it is claimed he took into his possession under a writ of replevin issued at the instance of the plaintiff in this action. The facts set forth in the complaint as pertaining to both branches are that the plaintiff sold to one Davies, certain, merchandise ; that the sale was induced by 'fraudulent representations on the part of. the purchaser; that the property was delivered to such purchaser at Fort Edward ; that upon discovery of the false representations of Davies the plaintiff elected to rescind the sale; that Davies shipped the merchandise from Fort Edward to the city
The action of the court in dismissing the complaint, so fai’ as related to a recovery of the sum of $250 as a penalty, was right. Section 1707 of the Code of Civil Procedure provides: “A sheriff, who delivers to either party without the consent of the other, a chattel replevied by him, except as prescribed in the last section, or by virtue of an execution issued upon a judgment in the action, forfeits to the party aggrieved two hundred and fifty dollars; and is also liable to him for all damages which he sustains thereby.” The allegation of the complaint is that the sheriff released the. property to some person or persons unknown to the plaintiff. It is not alleged that the-property was delivered to the defendant. On this branch of the case the action is for a penalty. The section of the Code refers to a delivery by the sheriff to either party without the consent of the other and relates directly to the provisions of section 1706, which prescribes when and to whom the sheriff must deliver a chattel. The words “ either party ” in section 1707 mean the parties mentioned in section 1706. These two sections read together refer to a delivery by .the sheriff to parties to the action, and those parties are the defendant or the plaintiff in the action and no one else. The claims of third parties are regulated by other sections of the Code, and in this respect the provisions of section 1707 differ materially from the provisions of section 18 of title 12 of chapter 8 of part 3 of the Revised Statutes regulating prior to the Codes of Procedure the action of replevin. (2 Edm. Stat. 543.)
As to the second branch of the action, the complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action because, under the Code of Civil Procedure, the sheriff is only authorized to take the property mentioned in the affidavit and requisition from the possession of the defendant in the action or his agent, and it was held that there is no allegation in the complaint, either that he so took it or that after so taking it he turned it over to the defendant or his agent. It is provided by section 1700 of the Code of Civil Procedure, that if any chattel
The question then is whether the complaint in this action, properly construed, contains allegations in substance and effect that the property was taken from the possession of Davies or his agent. On this branch of the case, the motion to dismiss was equivalent to a summary demurrer. The complaint was treated at the trial as if the plaintiff had declared on two causes of action, and its sufficiency must be determined by the same rules that would apply had a formal demurrer been interposed on the ground that it did not set forth facts sufficient to constitute a cause of action. On such a demurrer, a complaint will be held to state all the facts that can be implied from its allegations by reasonable intendment. (Sanders v. Soutter, 126 N. Y. 193; Kain v. Larkin, 141 id. 144; Sage v. Culver, 147 id. 241.)
Here, the fair implication is that the replevied articles were in the
■ The judgment must be reversed and a new trial ordered as to the second branch of the case, dr, as it is called, the second cause of action set forth in the complaint, with costs to appellant to abide the event.
. Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.
Judgment reversed and new trial ordered as to the second branch of the case, with costs to appellant to abide event. .