Stacy v. Farnham
New York Supreme Court
Motion by defendant to set aside writ of replevin and proceedings for irregularity. This motion was made on two grounds; 1st, because the writ should have been directed to and executed by the coroner ; and 2d, on the ground that the affidavit annexed to the writ should not have been entitled. It appeared in this case that the writ of replevin was directed to the sheriff of ®Erie county, and served by one of his deputies on the defendant, who was under sheriff of Erie.
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Motion by defendant to set aside writ of replevin and proceedings for irregularity. This motion was made on two grounds; 1st, because the writ should have been directed to and executed by the coroner ; and 2d, on the ground that the affidavit annexed to the writ should not have been entitled. It appeared in this case that the writ of replevin was directed to the sheriff of ®Erie county, and served by one of his deputies on the defendant, who was under sheriff of Erie. The defendant as under sheriff had previously received a warrant of attachment issued to the sheriff of Erie, and had attached…
1Opinion of the Court
Jewett, Justice.
This suit is neither brought by or against the sheriff of Brie, (2 R. S. 533, *§ 67,) therefore the writ of replevin was properly ^directed to and executed by him. The affidavit of ownership of property, &c., annexed to the writ should not have been entitled; for the reason it is informal and defective, but it maybe amended. (Cutler agt. Bathbone, sheriff, 1 Hill, 204, and cases there cited.) The plaintiff may, therefore, amend the defect in the affidavit by making and filing a new affidavit annexed to the writ without costs. {Rule 61.)
Buie accordingly.
2Cited by1 opinion
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