273 A.D. 982 | N.Y. App. Div. | 1948
Action for replevin in which there has been no seizure of the chattels in dispute. Order directing defendant to appear before trial for an examination as to her assets and as to the whereabouts of the personal property which is the subject matter of the action, requiring her to deliver an ancestral tea set into the custody of her attorney pending judgment ór further order of the court and, in default thereof, staying defendant from further defending this action, reversed on the law and the facts, with $10 costs and disbursements, and the motion for such relief denied, with $10 costs. Plaintiff previously obtained a full examination of the defendant before trial and showed no facts entitling him to any further examination. Nor did he bring himself within the provisions of section 1094-a of the Civil Practice Act, since he did not allege that he was without knowledge as to the whereabouts of the chattels. Moreover, the papers indicate that he has not taken advantage of the provisions of article 66 of the Civil Practice Act, entitling him to seizure of the chattels in dispute before final judgment. Under the circumstances, Special Term was not justified in directing defendant to turn over any of the chattels pending judgment or in staying her defense of the action. Lewis, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.