McCobb v. Christiansen

City of New York Municipal Court

McCobb v. Christiansen

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

CourtCity of New York Municipal Court

DecidedApril 15, 1899

StatusPublished

Cited by2 cases

This text of 27 Misc. 825 (McCobb v. Christiansen) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCobb v. Christiansen, 27 Misc. 825, 59 N.Y.S. 187 (N.Y. Super. Ct. 1899).

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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.

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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.

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Bluebook (online)

27 Misc. 825, 59 N.Y.S. 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccobb-v-christiansen-nynyccityct-1899.

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