176 A.D. 121 | N.Y. App. Div. | 1916
The complaint alleges that the plaintiff and defendant entered into a conditional sales agreement for the purchase of a piano. The piano was delivered to the plaintiff and he paid to the defendant $100 of the installments, pursuant to the agreement and made default. The defendant on November 4, 1915, delivered to the sheriff of Kings county an affidavit, requisition and undertaking, to replevy the piano from the possession of the plaintiff herein. On November fifth the sheriff did replevy the piano and took the same into his possession, and thereafter delivered the same to this defendant. On the 21st day of December, 1915, the defendant sold the piano, although no judgment had been entered in said replevin action. The complaint then sets forth in extenso sections 65 and 66 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45), and upon information and belief that the sale did
An important and interesting question is presented and was discussed in the lower courts, i. e., whether the taking of the property by the sheriff in pursuance of the requisition in the replevin action, and its delivery to the plaintiff therein, and a sale thereof by the plaintiff in that action prior to judgment, constitutes a retaking under the Personal Property Law; and, if the sale were made otherwise in compliance with the provisions of the statute, whether the defendant therein would be entitled to recover the installments paid. We do not think this question is fairly raised in this action, for the reason that sufficient facts are not alleged in the complaint to disclose the theory of the action. It is alleged that the property was taken by the sheriff on November fifth, and thereafter, the date not being mentioned, the sheriff delivered the property to the defendant, and that on December twenty-first the defendant sold the same — whether with or without notice, or whether the notice was served prior to the expiration of the period of thirty days, or, if after, whether it gave fifteen days’ notice of the sale, not being alleged. From the meagre statement of facts, any of these suppositions are possible. The sale was made on the forty-sixth day after the sheriff took possession of the property. It was his duty to keep the same in his possession for the three days in which the defendant in the replevin action had the right to except to the plaintiff’s sureties in the undertaking or to reclaim the chattel. (Code Civ. Proc. §§ 1703, 1704,
The motion for judgment was properly denied in the present condition of the pleadings and, therefore, the determination of the Appellate Term is affirmed, with costs.
Clarke, P. J., Scott, Dowling and Smith, JJ., concurred.
Determination affirmed, with costs.