Thorn v. Lazarus

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