Wilson v. Wheeler
New York Supreme Court
C. Anthony, for defendant, moved for judgment of dismissal of the complaint, and for judgment for the value of the property, and for a reference or writ of inquiry to ascertain the value. The action was to recover the possession of personal property, consisting of a quantity of furniture, which had been taken from the defendant and delivered to the plaintiff by an affidavit and endorsement thereon, pursuant to § 208 of the Code.
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C. Anthony, for defendant, moved for judgment of dismissal of the complaint, and for judgment for the value of the property, and for a reference or writ of inquiry to ascertain the value. The action was to recover the possession of personal property, consisting of a quantity of furniture, which had been taken from the defendant and delivered to the plaintiff by an affidavit and endorsement thereon, pursuant to § 208 of the Code. He read an affidavit, showing that the plaintiff had before neglected to bring the cause to trial, and had stipulated to do so, but again had neglected to do so, and…
1Opinion of the Court
Hand, Justice.
The question is, whether in an action of replevin, or, as it is now called, to recover the possession of personal property, the plaintiff can discontinue, upon payment of the costs merely, where the property has been delivered to the plaintiff, and the defendant has put in an answer entitling him to a return. The defendant insists that he has a right to a judgment for a return of the property, or the value of it, as he shall elect, notwithstanding the attempt of the plaintiff to discontinue.
There are some old cases that seem to be against the plaintiff. In one, it was said, that…
2Cases cited8 opinions
- Yates v. Fassett & WhitlockNew York Supreme Court · 1847
- Webbers' Executors v. UnderhillNew York Supreme Court · 1838
- Morris v. De WittNew York Supreme Court · 1830
- Gould v. WarnerNew York Supreme Court · 1829
- Cowdin v. StantonNew York Supreme Court · 1834
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