50 Misc. 661 | N.Y. App. Term. | 1906
The action was in replevin to recover possession of a dog or its value in case a delivery could not be liad. The defense urged on the trial was that the dog had died. The evidence was conflicting and there is not such a preponderance of proof as to the dog’s death as to warrant interference with the jury’s verdict. The defendant r I aims that the plaintiff must fail in this action because -he did not prove the allegations of the complaint that the dog had been removed or disposed of so that it.could not be found or taken by the sheriff and with the intent that it -hould not be so found or taken and to deprive the plaintiff of the benefit thereof. The evidence fails to sustain those allegations of the complaint; and, if the defendant were right in his contention, the judgment would have to be reversed. It has been held, however, that such allegations are merely a condition precedent to the right to arrest the defendant and that they have nothing to do with a cause of action where the allegations of fraud are unnecessary as in the case at bar. McGuire v. Bausher, 52 App. Div. 276.
As there is sufficient evidence to sustain the action as one for the recovery' of a chattel, the judgment should be affirmed, with costs.
Geldeesleeve and Davis, JJ., concur.
Judgment affirmed, with costs. '
