McCobb v. Christiansen

27 Misc. 825, 59 N.Y.S. 187

Opinion

McCarthy, J.

After a careful examination I am of the opinion that section 1725 of Code of Civil Procedure is clearly permissive and not mandatory, and that where, as claimed and conceded in this case, the answer contained a demand for the return of the chattel taken by the plaintiff, under a writ of replevin, it was not necessary to serve the notice, mentioned in section 1725, Code of Civil Procedure, in order to obtain a return of the chattel.

This was intended for those who had failed to demand the return of the chattel in the answer. There can be no reason for a demand for the return of the chattel in the answer, which is a part of the pleadings, and again in a separate notice. All the court requires to know is that a return of the chattel is demanded. Besides the plaintiff is clearly guilty of laches, in that it appears judgment by default was rendered on June 9, 1894, and a motion to vacate and set aside the judgment, taken by default, was not made until June 4, 1896.- I fully concur with Van Wyclc, Ch. J., in his memorandum.

Scotchman and Olcott, JJ., concur.

Order affirmed, with costs.