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Herman Kram, Doing Business under the Firm Name and Style of Kay Trimming Company v. " John " Adler, First Name Fictitious, Unknown to Caretaker of the Premises 44 West Twenty-second Street, Manhattan
Per Curiam.
Plaintiff issued a requisition in replevin which, with the summons and complaint in the appropriate action were served upon defendant by a marshal. The marshal’s return shows, and the testimony demonstrates, that the chattels mentioned in the requisition had been leased to a third party.
Under those circumstances defendant could not have been guilty of contempt of court for having “ wilfully disobeyed the writ of replevin * * * in that he failed to turn over [to the marshal] * * * the chattels therein described and enumerated.”
Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.
All concur; present, Bijur, Levy and Churchill, JJ.