Clements v. Walker

2 Misc. 2d 400, 148 N.Y.S.2d 519

Opinion

Per Curiam.

Since the articles claimed by the plaintiff were not replevied, their value at the time of the trial should have been fixed by the decision below and the sum fixed as their value awarded to the plaintiff by the judgment, in accordance with the provisions of the Civil Practice Act (§§ 1119, 1123). These provisions are mandatory and because of noncompliance with them the decision and judgment are defective. (Arwin Sportswear Co. v. Salerno, 273 App. Div. 882; Kram v. Manufacturers Trust Co., 238 App. Div. 680; New York Yellow Cab. Co. Sales Agency v. Courtlandt Garage & Realty Corp., 223 App. Div. 44.) The court does not reach the merits of the controversy.

The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.

Hofstadter, Eder and Hecht, JJ., concur.

Judgment reversed, etc.