Koerkle v. Pangburn

Per Curiam. Where the defendant in a replevin suit duly excepts to the sufficiency of plaintiffs’ sureties, the sureties must justify upon the return of the summons. Laws of 1882, chap. 410, § 1336. The mere presence of the sureties in court on the return day is not a compliance with the requirements of the statute. It is the plaintiff’s duty to procure the justification, and if he neglects to do so, the defendant, unless he consents to an adjournment of the justification, which was not done in this case, is entitled to the immediate return of the property taken by the marshal, and, in default of such return, the marshal becomes personally liable therefor. Webb v. Hecox, 27 Misc. Rep. 169; Goff v. Bliss, 12 Civ. Pro. 99. The rights of the plaintiffs in this case, who were the defendants in the replevin action, were in nowise impaired by consenting to the adjournment of the trial of the action from time to time. Nothing transpired, so far as the record discloses, which could be held to be a waiver on plaintiffs’ part. It appears that the chattels were delivered by the marshal to the plaintiff in the replevin action immediately after the levy. As this was done without the [777] consent of the plaintiffs in this action, the marshal incurred a penalty of $100, in addition to the damages sustained. Laws of 1882, chap. 410, § 1340. These damages were shown to he $35, and the plaintiffs, under the proofs in this case, thereby became entitled to a judgment for $135, besides the costs of this action. The judgment appealed from, which was rendered in favor of the defendant, is entirely unsupported by the proof, and must be reversed. Present: Beekmak, P. J., Giegepach and O’Gorman, JJ. Judgment reversed and new trial ordered, with costs' to appellants to abide event.