Lyons v. Mulvihill

BIJUR, J. The defendant is a marshal of the city of New York, and this action is brought against him for refusing to turn over certain property to the plaintiff, who claims to be the owner thereof. Aside from all other questions, it does not appear that any affidavit ■of claim was served on the defendant, in accordance with sections 113 and 114 of the Municipal Court act (Laws 1902, c. 580). As this is a prerequisite to maintaining the action (McCarthy v. Ockerman, 154 N. Y. 565, 49 N. E. 153; Hastings v. Nagel, 83 Hun, 205, 31 N. Y. Supp. 598), the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.