Oppenheim v. Lewis

20 A.D. 332, 46 N.Y.S. 765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 15, 1897
• Status: Published

Opinion

Per Curiam:

It appears from the "papers in this case that the complaint was dismissed as to the defendants Lewis and Fordinsky on the 25th of August, 1896. The order dismissing that complaint reserved no right to make further application, and that order "stands without modification. Subsequently, and on the 2d of October, 1896, a motion for the same relief which was granted herein was made at a Special Term held by Mr. Justice Russell, who denied the motion, and that order stands unappealed from and unreversed. That order is a conclusive decision against the right of the defendants to have the relief which they asked for here.

The question as to the right to grant such relief in an action of a similar nature was submitted to the court in the case of Sheehan v. Golden (85 Hun, 462), in which it was held that the defendants other than the sheriff, upon dismissal of the complaint, were not entitled to judgment that ■ the goods replevied be delivered to the sheriff.

For these reasons the order should be reversed, with ten dollars costs and disbursements.

Present — Patterson, Rumsey, Williams, O’Brien and Parker, JJ.

Order reversed, with ten dollars costs and disbursements.