Levy v. Hohweisner

101 A.D. 82, 91 N.Y.S. 552

Opinion

Jenks, J.:

We think that in the absence of the plea"authorized by section 117 of the Municipal Court Act,

* and of any proof that the defendants had required a return, of the chattel, the final judgment in this action cannot award possession of the chattel to the defendants. (Mun. Ct. Act, § 123.) The judgment, however, may be- modified on this appeal. (Mun. Ct. Act, § 310; Christiansen v. Mendham, 45 App. Div. 554; Fitzhugh v. Wiman, 9 N. Y. 559.)

The defendants under their answer of. title in a third'person Were entitled to offer evidence of the title of Walker, and consequently, to call Walker as a witness, irrespective of the fact that Walker had not availed himself of the provisions of section 115a of the Municipal Court Act (added by Laws of 1903, chap. 431), for that section, in our opinion, does not affect or limit .section 117. The omission of the defendants to pray judgment for a return does not preclude them from any subsequent action to regain possession thereof, of course, subordinate to the title of Walker. . (Brady v. Beadleston, 62 Hun, 548; Shepherd v. Moodhe, 8 Misc. Rep. 607.)

The judgment.should be modified so as to be for the defendants' on the merits, with fifteen dollars costs, and as modified it should be affirmed, -without costs.

Hirschberg, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Judgment of the Municipal Court modified in accordance with the opinion of Jerks, J., and as modified affirmed, without costs.

Laws of 1902, chap. 580. — [Rep.