
    Harry Scherl, Respondent, v. Herman L. Flam, Individually and as a City Marshal of the City of New York, Appellant.
    Second Department,
    June 11, 1909.
    Replevin—meeting appellate court’s objections on new trial—'suit against defendant in official capacity.
    Where a, judgment recovered on a written contract has been reversed the party will not be suffered to succeed on a new trial by swearing to an oral agreement differing from the written agreement in a respect essential to meet the decision on appeal. •'
    One cannot recover in replevin against a defendant sued as city marshal except for some act which he assumed to perform as city marshal, and in the absence of evidence that he so acted in taking the property, a judgment against him as city marshal will be reversed.
    Appeal by the defendant, Herman L. Flam, individually, etc., from a judgment of the Municipal .Court of the city of New York,- in favor of the plaintiff, .rendered on the 26th day of- January, 1909."
    
      Samuel W. Phillips, for.the appellant.
    
      David Hirschfield, for the respondent.
   Miller, J.:

This is a replevin suit, originally brought against the defendant individually and as city marshal. A judgment in favor of the plaintiff was reversed by this court on the ground that the written contract under which the plaintiff claimed to have delivered the goods to one Hyman Zweifach, from whose possession they were taken, was void. (129 App. Div. 561.) The contract provided in'substance that the- plaintiff would from time to time deliver to said Zweifach, a baker, flour in such quantities as the plaintiff should deem lit and advisable, and that the title thereto should remain in the plaintiff, but that said Zweifach might use such quantities.as. he required in his business from time to time upon notifying the plaintiff thereof, and “immediately, at his earliest convenience” paying him for the same. Upon this trial the plaintiff swore to an oral agreement in substance like the said written agreement, except that Zweifach was to pay each day for the quantity of flour to be used before using it.

A party who has recovered a judgment on a written contract, which has been reversed, should not be suffered to succeed on a new trial by swearing to an oral agreement differing from the written agreement in a respect essential to meet the decision on appeal. But it would seem that the defendant could not justify the taking without proving a valid judgment and an execution; and no attempt was made to justify, although it seems to have been assumed that he levied upon the property by virtue of an execution issued upon a Municipal Court judgment against said Zweifach. However, on this trial the plaintiff discontinued as against the defendant individually, and the judgment appealed from is against the defendant as a city marshal. The plaintiff could not recover against him in that capacity, except for some act which he assumed to perform as city marshal, and there is no evidence whatever that he assumed-to act as such in taking the property. ■

The judgment is reversed.

Jerks, Gaykor and Rich, JJ., concurred; Hirsohberg, P. J., not voting.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  