
    Phœbe Blake, Appellant, v. Florence McNamara, Respondent.
    (City Court of New York —General Term,
    June, 1894.)
    Where the defendant in an action of replevin Has given an undertaking for the return of the property, it is error for the court to charge that the jury must find that the property must have heen in the possession of the defendant, as the defendant is precluded hy the recitals in the undertaking from denying that the property was in his possession.
    Appeal from judgment in favor of defendant, entered on verdict, and from order denying motion for a new trial.
    Kohn, Ruck & Lippman, for appellant.
    
      George A. McDermott, for respondent.
   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 the delivery of the chattels under section 1704 of the Code, and the property was returned to 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 which 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.

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

Conlan, J., concurs.

Judgment reversed and new trial granted, with costs to appellant to abide event.  