
    Rudolph Sommer, Plaintiff, v. Jacob Greenberg et al., Defendants.
    Appeal from an order denying a motion for a new trial.
    
      A. A. Joseph, for plaintiff.
    
      Samuel Campbell, for defendants.
   Newburger, J.

This is a motion by plaintiff for a new trial on exceptions taken at trial term on a dismissal of the complaint, to be heard in the first instance at General Term.

This action is brought in replevin and was originally commenced against the sheriff, and the defendants were substituted as indemnitors.

The complaint alleges that the plaintiff was the owner and entitled to the possession of certain goods and chattels that the sheriff had possession of said property and wrongfully detained same from the plaintiff herein; that the sheriff’s ground of detention of said chattels was that he was entitled to possession by virtue of certain process issued to him as sheriff; that before the commencement of the action the plaintiff duly demanded from the sheriff a return of the property, which the said sheriff refused; that subsequently and after the commencement of the action an order was made substituting the present defendants in the place of the sheriff as defendants in this action.

The answer is, in substance, a general denial.

On the trial, and before any of the witnesses were sworn, the justice dismissed the complaint on the grounds: First. That the complaint did not state facts sufficient to constitute a cause of action. Second. That no action could be maintained on the facts set forth in the complaint, to which rilling an exception was duly taken.

We think the trial justice erred.

The complaint states facts sufficient to constitute a cause of action.

It is claimed by defendants’ counsel that the complaint does not show the cause of the wrongful detention.

A careful examination of the complaint convinces us that the plaintiff clearly states the cause of detention to be an alleged process in the hands of the sheriff against parties other than the plaintiff.

But it is claimed that this action cannot be maintained under the decision of the Court of Appeals, in Wise v. Grant, 140 N. Y. 593.

That case has no application here. The Court of Appeals simply held that there was a failure of proof in that case to entitle plaintiff to recover in replevin.

In this case, however, there was no proof offered, and nonoonstat but what plaintiff might have offered the proof the Court of Appeals, in Wise v. Grants 140 N. Y. 593, say is necessary to sustain an action in replevin where a sale is sought to be rescinded, to wit, notice of intention on the part of the vendor to rescind.

For these reasons the order appealed from must be set aside and a new trial granted, with costs to plaintiff to abide the event.

Conlan and Fitzsimons, JJ., concur.

Order reversed and new trial granted, with costs to plaintiff to abide event.  