People ex rel. Heine Piano Co. v. Lauer

80 Misc. 436, 141 N.Y.S. 299

Opinion

Platzek, J.

This is an application that a peremptory writ of mandamus issue to a justice of a Municipal Court requiring him to allow and sign a writ of replevin applied for by the petitioner in an action commenced in the Municipal Court of the city of New York. The papers upon which the writ was asked were wholly insufficient. The complaint and affidavit presented were verified by the attorney for the relator, a foreign corporation. All of the material allegations are made upon information and belief of the attorney. His affidavit is barren of any statement indicating the sources of his information or knowledge or the grounds of his belief. Murphy v. Jack, 142 N. Y. 215; Hoormann v. Climax Cycle Co., 9 App. Div. 579. It does not appear in the papers that any demand for the return of the property was made before or at the time that the action was commenced. It is elementary that when an action is founded upon wrongful detention only, and not upon a wrongful taking of a chattel, a demand for the return of the property must not alone be alleged, but proved. The learned justice was justified under these circumstances in refusing to allow a writ of replevin to issue. This application must be and is denied.

Application denied.