
    Phoebe Blake, App’lt, v. Florence McNamara, Resp’t.
    (New York City Court, General Term,
    
    
      Filed June 20, 1894.)
    
    Replevin—Estoppel.
    The defendant, where he gives an undertaking for the return of the property, is estopped from denying that he had possession of the property or any part thereof at the commencement of the action, or from showing that it was different or other property.
    
      
      JCohn, Buck & Lvppman, for app’lt; George A. McDermott, for resp’t.
   Newburger, J.

This is an action in replevin to recover possession of certain personal property. The complaint alleges that the defendant wrongfully took and also, wrongfully detained possession of the said chattels, and the answer denied each and every allegation of the complaint.' Upon the property being taken by the sheriff, the defendant gave an undertaking to prevent delivery of the chattels under § 1704 of the Code, and the property was returned to the defendant. The case came on for trial and a verdict was rendered in favor of the defendant, and from the judgment entered thereon, and from the order denying the motion for a new trial, this appeal is taken. On the trial of the action, the trial justice charged the jury subject to plaintiff’s objection and exception. That the jury must find that the property must have been in the possession of the defendant. We think the trial justice thus erred in his statement of the law governing the case. The defendant gave an undertaking whioh prevented a delivery of the property by the sheriff as required by the requisition. He is therefore precluded by the recitals in the undertaking from denying that the property was in his possession. In an action to recover the possession of personal property, when the defendant gives an undertaking for the return of the property, admitting therein that plaintiff has taken the property described in his affidavit and requisition from defendant's possession, he is estopped from denying that he had possession of the property or any part thereof at the commencement of the action, or from showing that it was different or other property; he is concluded by the recitals in the undertaking. Martin v. Gilbert, 119 N. Y. 298; 29 St. Rep. 447.

The judgment appealed from must therefore be reversed, and a new trial granted with costs to appellant to abide event.

CoNLAN, J., concurs.  