Wisconsin Marine & Fire Insurance Co. Bank v. Hobbs

22 How. Pr. 494 | N.Y. Sup. Ct. | 1862

Leonard, Justice.

I. The undertaking given on the commencement of the action contains a provision which covers any judgment for costs which the defendant may obtain, and substantially complies with the statute in relation to the bond for costs in actions by foreign corporations.

II. The sheriff certifies that he did serve a copy of the requisition for the property on the defendant, and there is no evidence to show that he did not do so.

III. The plaintiff is not at liberty to deny, in an action on his undertaking to obtain the delivery of property, that he made the affidavit which is therein recited that he did make, although the affidavit be in fact made by another.

IY. The statement in the affidavit that the money was advanced by Ferguson, plaintiffs’ cashier, is not a statement that plaintiffs advanced the money, A special title to the flour is shown to be in Ferguson, cashier, but not in the plaintiffs, as it should do.

It appears, however, that the defendant has given the requisite undertaking, and has obtained a re-delivery of the property in question to himself.

The affidavit has, therefore, now ceased to be of any materiality.

The summons is regular. The plaintiffs can file their complaint if the defendant neglects to appear and take judgment, thereby becoming entitled to recover in an action, on the defendant’s undertaking to obtain a re-delivery. The summons cannot be set aside, or the action be terminated by reason of a defect in the affidavit to obtain the taking and delivery to the plaintiffs of personal property.

If the plaintiffs or the sheriff were in possession thereof, the court would be authorized to direct its return to the defendant for a defect in the affidavit, unless the court should consider it a proper case to permit an amendment of the plaintiffs’ affidavit on terms.

The defendant having given an undertaking, and obtained a re-delivery of the flour, will be liable to an action thereon, unless he successfully defends this action.

The affidavit has ceased to be of any further consequence in this action. The defendant has the flour. His undertaking, therefore, has been given. The court cannot order that undertaking to be canceled, which the defendant has thought proper to deliver, to obtain the re-delivery of the flour. The time for the defendant to avail himself of any objection for a defect in the plaintiffs’ affidavit has passed.

The defendant’s motion is denied, with $10 costs of opposing.

Order affirmed at general term, March, 1862, without costs.