36 N.Y.S. 218 | N.Y. Sup. Ct. | 1895
The complaint in this action charges the defendant, as sheriff, with wrongful taking and wrongful detaining from the possession of the plaintiff a large quantity of boots and shoes and store fixtures belonging to the plaintiff, of the value of $800. The defendant, in his answer, denies the wrongful taking or detaining of the chattels described in the plaintiff’s complaint, and sets up by way of defense the recovery of a judgment in the supreme court in favor of the P. Cox Shoe Manufacturing Company for the sum of $646.04 against one Miles Cooling, and the docketing-of that judgment in Montgomery county, where the goods were alleged to have been converted; the issuing of an execution upon the same against the property of Cooling, in whose possession the goods alleged to have been taken were; and that said property was seized and held under and by virtue of such execution. On the trial of this issue before the referee it was stipulated in open court between the parties that the value of the goods was $610, that the allegations of the answer relating to the recovery of a judgment and the issuing of an execution thereon were true, and that the goods claimed in the action of replevin were the same goods taken by defendant under such execution. It appears from the case that on the lith of August, 1893, Cooling, the defendant in the judgment and execution, was the owner and in the possession of the stock of boots and shoes and of the fixtures in the store No. 65 East Main Street, Amsterdam, N. Y., and at that time the plaintiff, Monihan, was an accommodation indorser on Cooling’s notes in the
Judgment affirmed, with costs. All concur.