25 N.Y.S. 1115 | New York City Court | 1893
This is an action of replevin commenced by plaintiff against the defendants Luengene and Richard Roe to recover possession of certain furniture which plaintiff alleges he is the absolute owner of, and which is in the possession of Luengene, who refuses to return it to plaintiff. There is no claim that Richard Roe was intended to represent any one in the matter whose name was unknown or who had any interest in the litigation. The plaintiff, by virtue of sections 1694 to 1699 of the Code of Civil Procedure, required the sheriff to replevy the furniture, giving the undertaking according to section 1699 for the return of the property -to defendants Luengene and Roe, if possession thereof is adjudged to them, or if the action abates or is discontinued, and for the payment of damages awarded to them. The sheriff took possession of the furniture, and thereafter one John H. Seed, not a party to the action, made the usual claim upon the sheriff for the property, according to the provisions of section 1709, who refused to deliver up the same to either Seed or the plaintiff, and Seed then commenced an action against the sheriff therefor. Thereafter the plaintiff applied for and secured an order ex parte, making Seed a party defendant, on the ground that he claimed some interest in the property. The amended and supplemental complaint is the usual one in replevin against defendant Luengene, the allegations of which have no reference to Seed, except that the fourth clause alleges “ That the defendant, John H. Seed, claims some interest in the foregoing goods and chattels.” Seed moved to vacate the order making him a party, and from the order denying the same this appeal is taken. Before Seed
These views seem to be fully sustained by Chapman v. Forbes, 123 N. Y. 532, 538-540.
We think the order making Seed a party ought to be reversed, with ten dollars costs and disbursements to be taxed, and motion granted, with ten dollars costs.
Clement, Oh. J., concurs.
Ordered accordingly.