De Veaux v. Holliday

107 N.Y.S. 747

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 20, 1907
• Status: Published

Opinion

FORD, J.

This is an action against the sureties on an undertaking in replevin furnished by the plaintiff in the replevin action to the defendant in that action, the plaintiff here. In the replevin action, the following judgment was rendered:

“Judgment for the plaintiff for the possession of the chattels or their value,

fixed at $50.00, on payment to defendant of her lien fixed at..........$54 61

Prospective costs.................................................. 10 00

2 41

$67 02

“Dated this May 21st, 1907. George F. Roeseh, Justice.

“If defendant’s lien as above not paid, judgment for defendant.”

The plaintiff in that action did not pay the amount of the lien, and the defendant there brings this suit against the sureties on the undertaking. Judgment was rendered for plaintiff and the defendants appeal.

There was no proof of the issuance and return unsatisfied of an execution against the plaintiff in the replevin action. Under section 126-of the Municipal Court act (Laws 1903, p. 1531, c. 580), this is a condition precedent to the maintaining of an action against the sureties.

For this reason the judgment should be reversed, and a new trial, ordered, with costs to appellant to abide the event All concur.