Mendel v. Herling

PER CURIAM. This is an action in replevin. Plaintiffs boarded their horses in defendant’s stable, where they had an account. Upon desiring to move t'o another stable, defendant refused to deliver up the-property, although plaintiffs alleged that, they tendered the full amount of the bill due. Defendant now claims a greater amount than that tendered. Plaintiffs recovered possession of the chattels, and upon the trial of this action the justice rendered judgment in favor of the defendant for $239. Although the amount is warranted by the evidence, the judgment is not in the form required by section 123 of the Municipal Court act (Laws 1902, p. 1530, c. 580), which requires that: [662] “Final judgment in favor of the defendant must award to him the sum fixed as therein specified [section 120], and, if it is not collected, the delivery of the chattel. * * * ” The j'udgment must therefore be modified, so as to conform to the requirements, and, as so modified, it is affirmed. Dunn v. Field (Sup.) 113 N. Y. Supp. 485. Judgment modified, by directing that it contain a provision that, in case the amount awarded to the defendant cannot be collected, then the property replevied shall be delivered to the possession of the defendant until the sum so awarded be collected or paid, and, as modified, affirmed, with costs.