
    Herman Kram, Doing Business under the Firm Name and Style of Kay Trimming Company, Respondent, v. “ John ” Adler, First Name Fictitious, Unknown to Plaintiff, Caretaker of the Premises 44 West Twenty-second Street, Manhattan, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 10, 1925.
    Replevin — contempt for failure to deliver goods — defendant not guilty where goods had been leased to another and were in his possession.
    The defendant, in an action of replevin, is not guilty of contempt on the ground that he failed to deliver to the marshal the goods replevied, where it appears that at the time the demand was made the goods were in the actual possession of a third person under a lease.
    
      Appeal by defendant from an order of the Municipal Court, Borough of Manhattan, Third District, adjudging him in contempt of court.
    
      Samuel M. Rivelson, for the appellant.
    
      Saul Grover Wlodaver, for the respondent.
   Per Curiam.

Plaintiff issued a requisition in replevin which, with the summons and complaint in the appropriate action were served upon defendant by a marshal. The marshal’s return shows, and the testimony demonstrates, that the chattels mentioned in the requisition had been leased to a third party.

Under those circumstances defendant could not have been guilty of contempt of court for having wilfully disobeyed the writ of replevin * * * in that he failed to turn over [to the marshal] * * * the chattels therein described and enumerated.”

Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.

All concur; present, Bijur, Levy and Churchill, JJ.  