8 Barb. 217 | N.Y. Sup. Ct. | 1850
The declaration in this cause is clearly bad, within the cases of Pattison v. Adams, (7 Hill, 126,) and Bond v. Mitchell, (3 Barb. Sup. Court Rep. 304.) The plaintiff should have alledged that the property replevied was the property of the plaintiff. This should have been done by a direct and issuable averment, and not by allegations of the evidence of such ownership. The facts set forth in the declaration, if proved, would have been proper evidence in support of the allegation of property in the plaintiff. This question has been so recently before this court, in one of the cases above cited, that it is only necessary to refer to the opinions in these cases for the authorities and reasons for the decision.
The counsel for the plaintiff claims that the error in pleading may be disregarded under section 176 of the code, which, by the 2d section of the supplemental act is made applicable to existing suits. That section directs that the court shall, in every stage
The demurrer is well taken, and there must be judgment for the defendants, with leave to the plaintiff to amend on payment of costs.