Austin v. Wauful
New York Supreme Court
Appeal from circuit court, Jefferson county. Replevin by Harlow S. Austin, against George W. Wauful, James Casler, and Sylvester Waterman, to recover the possession of certain personal property levied upon by the defendant Waterman as deputy-sheriff, under an execution issued upon a judgment in favor of the defendant Wauful against the plaintiff. The action was based on the ground that the property levied upon was exempt from levy and sale on execution.
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Appeal from circuit court, Jefferson county. Replevin by Harlow S. Austin, against George W. Wauful, James Casler, and Sylvester Waterman, to recover the possession of certain personal property levied upon by the defendant Waterman as deputy-sheriff, under an execution issued upon a judgment in favor of the defendant Wauful against the plaintiff. The action was based on the ground that the property levied upon was exempt from levy and sale on execution. The proof given on the trial showed that the property was not taken from the possession of the plaintiff, but was in his possession when this…
1Opinion of the CourtMartin, J.
That this was an action of replevin there can be no doubt. The complaint was in replevin, and on the trial the plaintiff in effect admitted that such was the action. A party cannot so frame his complaint that, if he fails to recover possession of the property, he can recover damages for its conversion. Seymour v. Van Curen, 18 How. Pr. 94. The object of the action of replevin is the recovery of specific personal property. It belongs to the same general class of cases as trespass and trover, but is a possessory action, and unlike either. “In order to maintain replevin the plaintiff must show a…
Also in this document: Concurrence.
2Cases cited4 opinions
- Barnett v. . SellingNew York Court of Appeals · 1877
- Diossy v. . MorganNew York Court of Appeals · 1878
- Driscoll v. DownerNew York Supreme Court · 1890
- Seymour v. Van CurenNew York Supreme Court · 1859
3Cited by3 opinions
- Miller v. YoumansNew York Court of Common Pleas · 1895
- Woodward v. McConnaugheyCourt of Appeals for the Ninth Circuit · 1901
- Wheeler v. VanderveerNew York Supreme Court · 1895