33 N.Y.S. 109 | N.Y. Sup. Ct. | 1895
The action was replevin for a quantity of goods alleged to have been obtained by the defendant Golden from the plaintiff by means of fraudulent representations. The goods were taken by the replevin process from the possession of the defendant Beck, sheriff of Erie county, who had previously seized them by virtue of an execution against the defendant Golden. The goods
It is conceded that the action could not be maintained under the doctrine of Wise v. Grant, supra. The question is whether, such being the case, the defendant Golden was entitled to a judgment for the return of the property to the defendant Beck. Of course, he was not entitled to have it returned to himself. By his answer he had expressly disclaimed for himself all right and title and interest therein after the levy by the sheriff. This disclaimer was probably too broad. He had at least a reversionary interest in case the goods sold for more than the amount of the execution. But he had no right to the possession of the goods. That, was vested in the sheriff by the levy, and it was for the sheriff to defend ■or to relinquish if he saw fit not to defend it. , He must be supposed to have had his own reasons for not defending his possession ■of the property, and demanding its return to him. In failing to do so, he has acted upon his own responsibility; and the rights of others, probably, need not suffer by his default. But in this action it is not apparent that anybody else can interpose to obtain for him what he has declined to ask for himself. The question is not free from difficulty, and the result indicated presents some anomalies. We are inclined to think the case is one omitted to be provided for in all the infinite detail of the statute which gives the “action to recover a chattel.” Certainly, we find nothing in the statute which favors the proposition that a defendant who is not entitled to a return of the property to himself can have judgment for its return to another defendant who has not asked for it. The merits ■of the case are all with the plaintiff. The defendant did not .■attempt to meet the case, made on the trial, of his fraudulent procurement of the goods. His sole dependence was upon a technical ■construction of the statute, which prevented the plaintiff from maintaining his action. We are of opinion that the court at the
The judgment appealed from should be affirmed. So ordered. All concur.