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Martin v. Miller

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 10, 1930
230 App. Div. 401 (N.Y. App. Div. 1930)

Opinion

October 10, 1930.

Appeal from Supreme Court of Steuben County.

Sebring King [ James O. Sebring of counsel], for the appellants.

Mordecai Casson, for the respondents.

Present — SEARS, P.J., TAYLOR, EDGCOMB, THOMPSON and CROSBY, JJ.


Respondents' original complaint in replevin states a complete cause of action inasmuch as it alleges demand before action brought, and that defendants' levy was made against the protest of respondents (chattel mortgagees) and with full notice of respondents' rights. Respondents were entitled to possession of the property as against the sheriff, even if the judgment upon which the levy under execution was based was valid, there being no claim that respondents' chattel mortgage was fraudulent or void. (Civ. Prac. Act, § 1089, subd. 3; Leadbetter v. Leadbetter, 125 N.Y. 290; Crutts v. Daly, 84 Misc. 192.)

The new allegations in the proposed substituted complaint are immaterial, and the order granting permission to serve another complaint and giving respondents a trial preference should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concur.


Order entered April 25, 1930, reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


Summaries of

Martin v. Miller

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 10, 1930
230 App. Div. 401 (N.Y. App. Div. 1930)
Case details for

Martin v. Miller

Case Details

Full title:CLARENCE N. MARTIN and Another, Respondents, v. NINA SPRAGUE MILLER and…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 10, 1930

Citations

230 App. Div. 401 (N.Y. App. Div. 1930)
245 N.Y.S. 37