65 N.Y.S. 732 | N.Y. App. Div. | 1900
The motion was made upon two grounds: First, that the affidavit was not made by the plaintiff, and, second, that it does not conform to the requirements of section 1695 of the Code of Civil Procedure. As the plaintiff is a corporation, and, therefore, could not make an affidavit, any official engaged in its management and familiar with the facts might properly do so. The affiant here was the treasurer of the plaintiff and there is every reason why he should have made the affidavit. So far as the allegations of wrongful detention in the affidavit are concerned, they are precisely such as are prescribed by section 1695 of the Code of Civil Procedure and are, therefore, for that reason sufficient. But that section of the Code requires that the chattels to be replevied must be particularly described in the affidavit. That is necessary not only for the protection of the sheriff but of the defendant as well, and the description required is such that there can be no doubt as to what property is to be taken. We think that the affidavit in that respect is not
Patterson, O’Brien and Hatch, JJ., concurred.
Van Brünt, P. J. :
I do not think that the affidavit was in any respect sufficient. I, therefore, concur in the result.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.