Schwietering v. Rothschild

26 A.D. 614, 50 N.Y.S. 206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Van Brunt, P. J.:

The affidavit upon which the requisition was issued was clearly defective. Section 1695 of the Code of Civil Procedure requires that the affidavit to -be delivered to the sheriff must particularly describe the chattel to be replevied. The affidavit does not describe the property. It simply refers to some pieces and numbers of yards and other unintelligible numbers. There is nothing whatever to designate the property, or to indicate to the sheriff what property was to be taken under the writ. It is necessary that this provision, should be complied with in order that the sheriff should be informed by the papers presented to him as to the particular property which he is called upon to seize, and that other creditors may be informed as to the claims sought to be asserted by the plaintiff in the replevin action.

We think that the affidavit utterly failed to comply with the provisions of the Code above referred to, and that the motion to set aside the requisition should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Rumsey, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.