Auerbach v. Marks
New York Court of Common Pleas
Appeal from a judgment of this court entered upon the verdict of a jury by direction of the court. The action was brought upon an undertaking given to obtain the return, to the defendants in a replevin suit, of the property replevied.
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Appeal from a judgment of this court entered upon the verdict of a jury by direction of the court. The action was brought upon an undertaking given to obtain the return, to the defendants in a replevin suit, of the property replevied. The replevin suit was commenced by Simon Auerbach, the plaintiff in this action, against Samuel M. Jacoby and Simon Batt, composing the firm of Batt & Jacoby, who had made a general assignment for the benefit of creditors, and Elias Goodman, their assignee. The property claimed was taken by the sheriff, but was returned upon the delivery to him of an undertaking…
1Opinion of the Court
Charles P. Daly, Chief Justice.
The defendants were not entitled to show that at the time of the commencement of the suit the property replevied was in the possession of Goodman, and that they executed the undertaking on his behalf only. The latter part of the offer was, in effect, to contradict the recitals in the undertaking, which they were estopped from doing (Decker v. Judson, 16 N. Y. 439); and the fact that Goodman had the property in his possession when the suit was brought, was immaterial. When the undertaking was entered into by the defendants the property was in the possession of…
2Cases cited9 opinions
- Hoffman v. Ætna Fire InsuranceNew York Court of Appeals · 1865
- Decker v. . JudsonNew York Court of Appeals · 1857
- Bemus v. BeekmanCourt for the Trial of Impeachments and Correction of Errors · 1829
- Ely v. . EhleNew York Court of Appeals · 1850
- Webbers' Executors v. UnderhillNew York Supreme Court · 1838
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3Cited by2 opinions
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- Trindle v. Register Printing & Publishing Co.Supreme Court of Colorado · 1914