
    Albany Belting and Supply Company, Appellant, v. William F. Grell, as Sheriff of the County of New York, Respondent.
    
      Penalty for delivering “ to cither party” a replevied chattel — what is an allegation that the property was talcen by the sheriff from the defendant or his agent.
    
    The words “ either party,” used in section 1707 of the Code of Civil Procedure, imposing a penalty upon “ A sheriff, who delivers to either party, without the consent of the other, a chattel replevied by him,” mean the parties mentioned in section 1706 of the Code, namely, the plaintiff or the defendant in the action, and a complaint in an action brought to recover such a penalty, which alleges that the sheriff delivered the property to some person or persons unknown, does not state a cause of action.
    A complaint in an action to recover damages for the alleged wrongful conduct of the defendant sheriff, in releasing property which he took into his possession under a writ of replevin issued at the instance of the plaintiff, alleged that the plaintiff sold and delivered property to one Davies at Fort Edward;, that upon discovering that the sale had been induced by false representations, on the part of Davies the plaintiff elected to rescind the sale and brought an action to replevy the property; that Davies shipped the merchandise from Fort Edward to the city of New York, ¡and that on the day of its arrival . in that city the writ of replevin was placed in the hands of one of the defendant’s deputies for execution; that one of the plaintiff’s- officers pointed out to-such deputy a portion of the' property at the New York Central and Hudson River Railroad Company’s freight depot in New York city arid also other portions Of the property found on a public street in that city; that, the sheriff-then and there took possession of the property by virtue of the process, but subsequently released it to some person or persons unknown to the plaintiff and without the plaintiff’s consent.
    
      Held, that the complaint sufficiently alleged that the property was taken from the possession of Davies or his agent.
    Appeal by the plaintiff, the Albany Belting and Supply Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of'New York on the 20th day of April, 1901, upon the dismissal of the complaint, by direction of the court after a trial at the New York Trial Term. L. E. Warren.for the appellant.
    
      Philip J. Britt, for the respondent.
   Patterson, J.:

When this cause came on for trial and immediately upon the jury being impanelled, counsel for the defendant moved to dismiss the complaint. That motion was granted, and from the j udgment entered thereupon the plaintiff appeals. There are two branches of the action as set forth in the complaint, although they are not stated as separate causes of action. The first is to recover a penalty under section 1707 of the Code of Civil Procedure; the second to recover damages for alleged wrongful conduct of the defendant as sheriff in releasing property which it is claimed he took into his possession under a writ of replevin issued at the instance of the plaintiff in this action. The facts set forth in the complaint as pertaining to both branches are that the plaintiff sold to one Davies, certain, merchandise ; that the sale was induced by 'fraudulent representations on the part of. the purchaser; that the property was delivered to such purchaser at Fort Edward ; that upon discovery of the false representations of Davies the plaintiff elected to rescind the sale; that Davies shipped the merchandise from Fort Edward to the city of New York, where it arrived on or about September 27, 1900 ;; that on that day the plaintiff brought an action against Davies in the Supreme Court of the State of New York, in the county of Albany, and issued a summons and complaint; that the action was in replevin and for damages, for the wrongful detention of the property; that at the same time the plaintiff caused to be made an affidavit which, with a requisition requiring the sheriff of the county of New York to replevy the chattels, was delivered to such sheriff; that the ¡ilaintiff caused to be executed in due form of law an undertaking as required by the statute in actions of this character; that on the 27th of September, 1900, the plaintiff caused the original summons and complaint, affidavit, requisition and undertaking, together with copies thereof, to be placed in the hands of the defendant in this action, who was then the sheriff of the • county of New York; that the defendant approved of the undertaking and the plaintiff paid the sheriff’s fees; that the process and papers mentioned were, delivered into the hands of one of the defendant’s deputies for service and execution, and on the day mentioned' one of the officers of the plaintiff corporation pointed out to such deputy part of the property (which the sheriff was required to take by virtue of the requisition) at the New York Central and Hudson River Railroad Company’s freight depot in New York city, and also other portions of the property found upon a public street of the city of New York; that the sheriff then and there gave notice to the parties engaged in handling such property that he replevied the same and then and there took possession thereof by virtue of the process; that at the expiration of three days after the property was so pointed out and replevied, and without procuring any undertaking as was required by law, and the plaintiff’s bond not having been excepted to, and without any affidavit having been filed by any third party claiming the property, the sheriff released it to some person or persons unknown to the plaintiff and without the plaintiff’s consent, and refused to hold possession thereof as required by- law; and thereupon it is charged that the defendant forfeited the sum of $250 to the plaintiff under section 1707 of the Code of Civil Procedure. The complaint further alleges that upon the expiration of three days after the property was pointed out to the sheriff and taken by him under the writ, the plaintiff duly demanded such property from the possession of the sheriff, who refused to deliver it or any part thereof to the plaintiff, by reason of which the plaintiff sustained damages to the amount of $622.93, the value of the chattels. Judgment was demanded both for the penalty and for such value of the merchandise.

The action of the court in dismissing the complaint, so fai’ as related to a recovery of the sum of $250 as a penalty, was right. Section 1707 of the Code of Civil Procedure provides: “A sheriff, who delivers to either party without the consent of the other, a chattel replevied by him, except as prescribed in the last section, or by virtue of an execution issued upon a judgment in the action, forfeits to the party aggrieved two hundred and fifty dollars; and is also liable to him for all damages which he sustains thereby.” The allegation of the complaint is that the sheriff released the. property to some person or persons unknown to the plaintiff. It is not alleged that the-property was delivered to the defendant. On this branch of the case the action is for a penalty. The section of the Code refers to a delivery by the sheriff to either party without the consent of the other and relates directly to the provisions of section 1706, which prescribes when and to whom the sheriff must deliver a chattel. The words “ either party ” in section 1707 mean the parties mentioned in section 1706. These two sections read together refer to a delivery by .the sheriff to parties to the action, and those parties are the defendant or the plaintiff in the action and no one else. The claims of third parties are regulated by other sections of the Code, and in this respect the provisions of section 1707 differ materially from the provisions of section 18 of title 12 of chapter 8 of part 3 of the Revised Statutes regulating prior to the Codes of Procedure the action of replevin. (2 Edm. Stat. 543.)

As to the second branch of the action, the complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action because, under the Code of Civil Procedure, the sheriff is only authorized to take the property mentioned in the affidavit and requisition from the possession of the defendant in the action or his agent, and it was held that there is no allegation in the complaint, either that he so took it or that after so taking it he turned it over to the defendant or his agent. It is provided by section 1700 of the Code of Civil Procedure, that if any chattel described in the affidavit is found in the possession of the defendant or his agent, the sheriff to whom the affidavit, requisition and undertaking are delivered, as prescribed in the foregoing sections of the article, must forthwith replevy it by taking it into his possession. He must, thereupon, without delay, serve upon the defendant a copy of the affidavit, requisition and undertaking by delivering the same to him personally if he can be found within the county; or, if he cannot be so found, to his agent, if any, from whose possession that chattel is taken ; or, if neither can be found within the county, by leaving the copy at the usual place of abode of either, with a person of suitable age and discretion. This section of the Code of Civil Procedure is taken from section 209 of the Code of Procedure, by which a radical change was made in the action of replevin aa that action was regulated under the Revised Statutes. The change; is pointed out by Judge Folgeb in the case of Manning, Bowman & Co. v. Keenan (73 N. Y. 61). Under the Code of Procedure, the; process is so fashioned that the command to the sheriff is to take-specific goods from a jiarticular person,” namely, the defendant or his agent. In such taking the sheriff is protected by the process; which does not protect him if taking from any other person. (Bullis v. Montgomery, 50 N. Y. 352.) “ If the sheriff does not follow his writ, and does take the property from the possession of another person than the one named in the writ, he is a trespasser.” (Otis v. Williams, 70 N. Y. 211.)

The question then is whether the complaint in this action, properly construed, contains allegations in substance and effect that the property was taken from the possession of Davies or his agent. On this branch of the case, the motion to dismiss was equivalent to a summary demurrer. The complaint was treated at the trial as if the plaintiff had declared on two causes of action, and its sufficiency must be determined by the same rules that would apply had a formal demurrer been interposed on the ground that it did not set forth facts sufficient to constitute a cause of action. On such a demurrer, a complaint will be held to state all the facts that can be implied from its allegations by reasonable intendment. (Sanders v. Soutter, 126 N. Y. 193; Kain v. Larkin, 141 id. 144; Sage v. Culver, 147 id. 241.)

Here, the fair implication is that the replevied articles were in the possession of Davies. They were in his possession at Fort Edward, and nothing appears from the complaint to show any change of that possession. It does not appear that they were consigned to any person other than Davies himself, and the reasonable assumption is that the carrier’s possession was his possession- It further appears that the sheriff’s deputy seized the property under the writ, and, therefore, actually executed the process conformably to its requirement. The allegations of the complaint were, therefore, broad enough to cover the fact that the property was taken from the possession of Davies or his agent, and when the process was executed by the sheriff and he took the merchandise under it and then relinquished his possession, the burden was thrown upon him to show sufficient reason in law for his abandonment of the property to a third person, by which act the rights of the plaintiff in the replevin action were wholly defeated.

■ The judgment must be reversed and a new trial ordered as to the second branch of the case, dr, as it is called, the second cause of action set forth in the complaint, with costs to appellant to abide the event.

. Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment reversed and new trial ordered as to the second branch of the case, with costs to appellant to abide event. .  