
    Zebulon S. Taylor, as Executor, Etc., Respondent, v. Walter M. Jackson, Appellant.
    (Supreme Court, Appellate Term,
    June, 1901.)
    Action by an individual — An amendment cannot authorize him to replevy as an executor.
    Where the plaintiff sues as an individual, he cannot replevy property which he alleges, in his affidavit for the writ, that he owns and possesses as executor of a decedent.
    An amendment adding the word “ executor ” to the summons and to the affidavit for the writ of replevin is insufficient to confer jurisdiction, nor has the court power to amend, in this manner, an executed undertaking given by the plaintiff to procure the writ of replevin.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of ¡New York, ninth district, borough of Manhattan.
    W. P. Schoen, for appellant.
    F. Johnson, for respondent.
   Per Curiam.

There is no allegation in the affidavit submitted to support the writ of replevin which avers, in any issuable form, the fact that the plaintiff is the executor of Byron S. Sabin, deceased; the mere statement is made that he is such executor, and that as such executor he is the owner of and entitled to the possession of the goods in suit. While it thus clearly appears that, individually, the plaintiff made no claim to the said property, nevertheless he brought the action individually. A motion to vacate the writ for this reason was made, and denied, and upon this proceeding an amendment was allowed adding the word “ Executor ” both to the summons and the affidavit. Upon the trial a motion to dismiss was made which was disposed of by the learned trial justice saying: “ While I do not agree with Judge Martin, the motion having been made before and granted by him, I have no power to review his action and am forced to proceed with the same as I find it.” This was practically a denial of the motion. It will be noted that the amendments in each case were of the one word “Executor.” which was purely descriptive. Casco National Bank v. Clark, 139 N. Y. 307. Furthermore the undertaking given to secure the writ cites Zebulon S. Taylor as the claimant of the property and the plaintiff in the action, and it surely cannot be seriously contended that the court had power to amend such executed instrument.

Judgment reversed and new trial ordered, costs to abide the event.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment reversed, new trial ordered, costs to abide event.  