
    William E. Thorn, as Trustee under the Will of William T. Garner, Deceased, Doing Business as Garner & Co., Respondent, v. Samuel Lazarus and Morris Gellert, Doing Business at 488 Grand Street, as Lazarus & Gellert, Appellants.
    
      Replevin — description of the property amended.
    
    Upon the hearing of a motion to vacate a requisition in replevin, made upon the ground of the insufficiency of the description of the property contained in the affidavit accompanying the requisition, the court may, in its discretion, grant the plaintiff leave to amend the description on terms.
    Van Brunt, P. J., dissented.
    Appeal by the defendants, Samuel Lazarus and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1899, denying the defendants’- motion to vacate a requisition in replevin, and granting the plaintiff leave to amend the description of the property contained in the affidavit accompanying the requisition.
    
      
      Henry M. Goldfogle, for the appellants.
    
      Louis F. Doyle, for the respondent.
   Patterson, J.:

This is an appeal from an order denying a motion to vacate a requisition in replevin and allowing an amendment of the description of the property in the affidavit accompanying that requisition. The motion was made on an affidavit of one of the attorneys for the defendants pointing out the insufficiency (in the affidavit in replevin) of the description of the property sought to be replevied. On the hearing of the motion an affidavit was read on behalf of the plaintiff, in which the property was specifically described by identifying marks and designations, and the plaintiff asked leave to amend the description of the property in the original affidavit presented to the sheriff.

That such original affidavit was insufficient needs no argument, and its defectiveness justified the motion to vacate the requisition. (Schwietering v. Rothschild, 26 App. Div. 614.) But on the hearing the plaintiff asked leave to cure the defect, and the question now is whether that leave was properly granted. That the court had power to grant it is plain (Code Civ. Proc. § 723), and we think it properly exercised its discretion, for no real injury, prejudice or inconvenience can be suffered by the defendants in consequence thereof. The power has been exercised under similar circumstances. In Depew v. Leal (2 Abb. Pr. 131) the General Term of the Superior Court held that on a motion to set aside replevin proceedings for an omission in specifying the property claimed, the defect might be supplied by a supplementary affidavit. That practice has been followed in the Special Term of the Supreme Court (Van Dyke v. New York State Banking Co., 18 Misc. Rep. 661), and is justified by tlie°authorities cited in the opinion in that case. But as the defendants’ motion was regular and authorized, the privilege accorded the plaintiff should have been upon terms, and the order should be modified so as to deny the defendants’ motion and grant the leave to amend on the payment of costs of the motion below. No costs on this appeal.

Barrett, Rumsey and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. I do not think the court should allow an amendment of an affidavit on these proceedings to recover goods illegally taken, unless some good excuse is offered showing some other reason than mere neglect or ignorance. No reason whatever is shown in these papers, and if the principle sustained by the court in this case is to prevail, there is no need of having any but a merely perfunctory affidavit in the first instance, as it can be amended as of course.

Order modified as directed in opinion, without costs of appeal.  