Suydam v. Jenkins, Sheriff
The Superior Court of New York City
This was an action of replevin in the detinet, for five hundred barrels of flour, commenced in the supreme court, and transferred to this court, having been tried by a sole referee, on the 23d day of December, 1847. The only question which was really controverted on the motion to set aside his report, was that of the amount of the defendant’s recovery, and the statement of the case is limited to the facts affecting that point, proved on the trial, which were as follows: The…
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This was an action of replevin in the detinet, for five hundred barrels of flour, commenced in the supreme court, and transferred to this court, having been tried by a sole referee, on the 23d day of December, 1847. The only question which was really controverted on the motion to set aside his report, was that of the amount of the defendant’s recovery, and the statement of the case is limited to the facts affecting that point, proved on the trial, which were as follows: The defendant, on the 25th day of May, 1846, as sheriff of the county of Kings, by virtue of an execution against Herman H.…
1Opinion of the CourtBy the Court. Duer, J.
We think, as we intimated upon *619the hearing, that the referee was entirely right, in deciding that the plaintiffs had failed to prove their title to any portion of the flour which they replevied. Then1 counsel judiciously limited their claim to the forty-six barrels, which he wished us to consider as the residue of the five hundred barrels originally sold or mortgaged; but the five hundred barrels were themselves parcel of a larger quantity, and they had not been so selected and separated as to enable the plaintiffs to identify any portion of them as their property. Rapalye v. Mackie, 6 Cow.…
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