Fitzpatrick v. Krause

27 Misc. 792

Opinion

Freedman, P. J.

Assuming, as is claimed by the plaintiff in this action, that he (plaintiff) was the owner of the property taken under the writ of replevin, by the defendant as .marshal of the city in. the ■action of R. Cohen against Feinberg Brothers, while such property was in the apparent possession of the said defendants in the writ, the plaintiff could only maintain this action by a compliance with the provisions of sections 1709, ltTlO of the Code of Civil Procedure, section 1341- of- the Consolidation Act, and section 1428 of the New York Charter. McCarthy v. Ockerman, 154 N. Y. 565. •

The record contains no proof of any such compliance. Judgment must be reversed, new trial ordered, with costs to the appellant to abide the event.

MacLeak and Levewtritt, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.