O'Cornell v. Kelly

8 N.Y.S. 475, 15 Daly 513, 29 N.Y. St. Rep. 491

• Court: New York Court of Common Pleas
• Decided: February 3, 1890
• Status: Published

Opinion

Larremore, C. J.

The judgment dismissing the complaint should be affirmed; and I concur in the reasons for such dismissal given by the learned judge in his opinion at special term. The clear intention of the Code is to put upon a defendant seeking the redelivery of a chattel which has been replevied the affirmative duty of having the sureties upon his undertaking justify, and of procuring the allowance of such undertaking. Sections 1704-1706. Section 1706 specifically provides that if defendant makes default in procuring the allowance of the undertaking the sheriff must immediately deliver the chattel to the plaintiff. It is not alleged in the pleadings, or shown by the proofs, actually what was done by the sheriff with the chattel in question. Certainly, it cannot be presumed that he delivered it to the defendant in the replevin suit, because it is not shown that said defendant entitled himself to such delivery by procuring the allowance of the undertaking. If there be any presumption at all to be entertained, it would be that the sheriff performed his legal duty under all the facts that appear; that is, that he delivered the chattel to the plaintiff in replevin. I agree with the learned trial judge that there was no consideration for the undertaking; that it never became, operative; that the sheriff never had authority to deliver it to the plaintiff in the replevin suit under section 1708; and that the sureties named in it never incurred any liability. The judgment should be affirmed, with costs.