6 Abb. Pr. 189 | New York Court of Common Pleas | 1858
This action is to recover the possession, and also claiming the delivery by the coroner to the plaintiff, of certain personal property in custody of the sheriff, having been taken by him by virtue of proceedings in an action of a nature similar
The sheriff claims no interest in the property; he merely has it in his custody, having taken it from possession of Davis and Bassford, the defendants in the last-named action.
It is a familiar rule, that when a remedy is provided by statute in any case, and the proceeding by which the remedy shall be pursued is distinctly specified, it is a virtual prohibition against proceeding in any other manner, and all other modes are excluded in the cases to which the remedy relates (Miller v. Taylor, 4 Burr., 2305, 2323; Dudley v. Mayhew, 3 Comst., 9; Sedgwick on Stat. and Const. Law, 92).
If the plaintiff desired to claim the property in question, he should have made the affidavit specified in section 216 of the Code, and delivered it to the sheriff, who, unless indemnified against this claim, would restore the property to the parties from whom it had been taken ; and it is expressly declared that “ no claim to such property by any other person than the defendant” {i. e, the person from whom it has been so taken) “ shall be valid against the sheriff, unless made as” in this section prescribed; thus providing against the very case under consideration.
The plaintiff’s affidavit and all subsequent proceedings to obtain-possession of the property being irregular, and unauthorized by law, the motion to vacate the same is granted.