McNamara v. Eisenleff
The Superior Court of New York City
Appeal from’a judgment of a justice of the peace. The action was instituted by Dennis McNamara against Peter Eisenleff, under subdivision 10 of section 53 of- the Code of Procedure, to recover the possession of personal property claimed.
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Appeal from’a judgment of a justice of the peace. The action was instituted by Dennis McNamara against Peter Eisenleff, under subdivision 10 of section 53 of- the Code of Procedure, to recover the possession of personal property claimed. It appeared' that the plaintiff was a constable, and held an execution against one Fisher, by virtue of which he had levied on certain property in the possession of the judgment debtor, and the defendant, under a claim of an antecedent sale by Fisher to him, had taken the property and thus defeated the levy. The plaintiff instituted the action, and it is…
1Opinion of the Court
By the Court.—Sheldon, J.
Upon the return, there is no room for question as to the nature of the action, and what should have been the precise form of the judgment, in whose favor soever the justice might have determined the controversy. The action was instituted to recover the possession of specific personal property claimed, or its value if not reached by the officer, and damages for detention. It was not trespass or trover, but replevin, as those terms are understood in their full significance, and the case should have been considered and determined by the rules of law, and the statute,…
2Cases cited2 opinions
- Gallarati v. . OrserNew York Court of Appeals · 1863
- Savage v. PerkinsNew York Supreme Court · 1855