
    (74 Misc. Rep. 43.)
    RUSHBROOK v. JERGE et al.
    (Erie County Court.
    October, 1911.)
    1. Replevin (§ 129)—Dismissal of Complaint—Action on Bond.
    Where, in replevin, defendant does not reclaim the chattels, and the complaint is dismissed on plaintiff’s default, defendant may maintain an action on the bond, without first obtaining return of execution unsatisfied, as required by Code Civ. Proc. § 1733.
    [Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 511-533; Dec. Dig. § 129.*]
    2. Replevin (§ 129*)—Dismissal-Action on .Bond.
    Code Civ. Proc. § 1733, requiring return of execution on final judgment for defendant in replevin before suing on the bond, does not mean a judgment of dismissal on plaintiff’s default but a judgment for the return of the chattels replevied or damages.
    [Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 511-513; Dee. Dig. § 129.*]
    Action by George Rushbrook against Herman Jerge and others. On motion to dismiss complaint.
    Denied.
    Calvin S. Grosser, for plaintiff.
    Charles Newton/ for defendants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   TAYLOR, J.

In an action of replevin, brought ín a justice’s court in this county against this plaintiff by one Weisberg, the defendants herein were the sureties on said plaintiff’s undertaking. This plaintiff, the defendant in said replevin action, did not reclaim the chattels replevied under section 2925 of the Code of Civil Procedure. On the return day in said action the plaintiff did not appear, and the justice entered a nonsuit, with costs.

The action at bar is one against the sureties upon plaintiff’s undertaking in said replevin action, and the defendants come into court and move to dismiss the complaint under section 1733 of the Code of Civil Procedure, upon the theory that the defendant in the replevin action recovered a final judgment therein, and therefore cannot maintain this action, because he has not preliminarily issued and had returned an execution, as specified in said section 1733. This section is made applicable to the situation here presented under section 2931 of the Code of Civil Procedure.

For the reason that the plaintiff in the replevin action defaulted on the return day, the defendant, of course, could neither file an answer, nor was he able to obtain a judgment awarding him possession of the chattels or damages on account of some special property in the chattels in himself, or on account of the chattels having been dis-trained being damaged, or because the property had been delivered to the plaintiff and the defendant damaged thereby. It is clear to me that one of the varieties of judgment just mentioned must be the kind of a “final judgment” necessarily intended by the wording of said section 1733, and the only kind upon which an execution mentioned in said section could be issued. Dickson v. Bickershoff, 48 Misc. Rep. 353, 95 N. Y. Supp. 585.

It is equally plain, therefore, notwithstanding the ingenious arguments of defendants’ counsel, that the proceedings taken by the justice of the peace on his return day did not result in a “final judgment” under section 1733. Wherefore an execution pursuant to said section is not a prerequisite to the bringing of this action. And so, although the justice’s court action did not “abate,” as plaintiff states in his complaint herein by way of surplusage and as an incorrect conclusion of law, I believe that the complaint does state facts sufficient to set forth a cause of action for damages against the sureties on an undertaking which, among other things, insured the prosecution of the action (Code Civ. Proc. § 1699) by the plaintiff. The amount of damages recoverable herein is a matter to be determined later. But this motion must be denied.

Motion denied.  