
    (72 Misc. Rep. 230.)
    RUSHBROOK v. MEAD.
    (Erie County Court.
    May 12, 1911.)
    1. Replevin (§ 45*)—Disposition of Property—Actions.
    Where defendant in replevin did not except to the sureties on a replevin bond two days before the return day of the summons, as required by Code Civ. Proe. § 2924, and did not before the return day, serve on the justice an undertaking and notice that he required the return of the chattels seized, it was the duty of the constable to immediately deliver the chattels to the plaintiff in replevin, as provided by section 2927.
    [Ed. Note.—For other cases, see Replevin, Cent'. Dig. § 176; Dec. Dig. § 45.]
    2. Sheriffs and Constables (§ 119*)—Replevin—Custody of Property—Delivery to Wrong Party.
    Where defendant, in replevin, did not make any demand or give notice that he required the return of the chattels before the return day, and on that day a nonsuit was granted because of plaintiff’s failure to appear, such nonsuit terminated the action; and hence a delivery of the property to plaintiff in replevin on the return day, but before the return hour, constituted a delivery to the wrong person, rendering the constable liable for $100 penalty and damages, imposed by Code Civ. Proc. § 2928.
    [Ed. Note.—For other cases, see Sheriffs and Constables, Dec. Dig. § 119.*]
    Action by George Rushbrook against Glenn Mead to recover a penalty. Judgment for plaintiff.
    Calvin S. Crosser, for plaintiff.
    W. C. Crombie (Reginald F. Penton, of counsel), for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1D07 to date, & Rep’r Indexes
    
   TAYLOR, J.

In July, 1910, one Max Weisberg brought an action before a justice of the peace in the town of Aurora, Erie county, against George Rushbrook, the plaintiff herein, to recover possession of certain chattels. In that action the defendant herein, who is a constable in said town, replevied the property involved in said action. The defendant therein, this plaintiff, did not except to the sureties two days before the return day of the summons (Code Civ. Proc.- § 2924), nor did he before the return day of the summons serve on the justice an undertaking and notice that he required the return of the chattels. Neither of these steps being taken by said defendant, it was the duty of the constable to “immediately deliver the chattels to the plaintiff.” Code Civ. Proc. § 2927. He did not do this, but retained possession of the chattels. On the return day of the summons the plaintiff defaulted in appearing and a nonsuit was granted. This ended that action, and the defendant therein had no opportunity to answer and demand possession under section 2930, Code of Civil Procedure, and thus obtain the protection mentioned in Bown v. Weppner, 62 Hun, 579, 17 N. Y. Supp. 193.

Thereafter—in legal effect, at any rate (Wood v. Bodine, 32 Hun, 354)—even accepting this defendant’s statement that Weisberg got possession of the chattels without his consent, this defendant delivered the chattels to Weisberg, the plaintiff in the first action, which had been terminated on account of that plaintiff’s failure to appear on the return day. This action is brought to recover the $100 penalty mentioned in section 2928 of the Code of Civil Procedure, on the theory that this defendant constable delivered the chattels to the wrong party in contravention of the statute. This defendant argues that his right to deliver the chattels to the plaintiff, Weisberg, on the return day of the summons, at any time before the return hour, was not terminable by the nonappearance of the plaintiff at the return hour. This argument seems to me to be unsound. The replevining by the constable and his subsequent acts pursuant thereto are all incidental to the action, and, as I believe, dependent tipon the existence of a pending action at the time each such act is performed. When that action failed through the plaintiff’s default, his rights as to thereafter obtaining possession of the chattels fell concurrently. And so, although after the dismissal of the action no “party” thereto in strictness existed, I believe and find that this defendant constable—not having strictly followed the letter of the statute as to delivery to the plaintiff—should not be permitted to enable that plaintiff to succeed in spite of his own default in appearing; that this defendant’s delivery of the chattels was otherwise than as contemplated by said section 2927, and is within the purview and prohibition of said section 2928. Rich v. Conley (Sup.) 64 N. Y. Supp. 333, 335, and cases .cited.

This plaintiff may have judgment for $100 and costs.  