Stearns v. Early

49 Misc. 614, 96 N.Y.S. 837

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1905
• Status: Published

Opinion

MacLean, J.

In this action of replevin to recover possession of certain chattels or their value, the defendant interposed a general denial and, at the trial, proved property in a third party by the introduction of evidence of an order, subsequent to the commencement of the' action, and in another cause, appointing a receiver of the plaintiff’s property. This was not improper, for, though the complaint might possibly be interpreted as framed in the cepit and in the detinei, it was apparently treated as in the detinet, in view of which the general denial put in issue, not only the wrongful detention, but plaintiff’s title; and, upon that issue, he had the right to show, not only title in himself, but title out of the plaintiff and in a stranger. Griffin v. Long Island Railroad Co., 101 N. Y. 348, 353. It was improper, however, to dismiss the complaint therefor, because “ in case of a transfer of interest or devolution of liability, the action may be continued, by or against the original party, unless the court directs the person to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with- the original parry, as the case requires ” (Code Oiv. Pro., § 756) ; and it does not appear that the receiver has ever been so substituted. Wherefore, the judgment and order herein must be reversed and a new trial ordered.

Scott and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.