Martin Lehman, Respondent, v. Lewis Mayer, Defendant; Edward J. H. Tamsen, as Sheriff of the County of New York, Appellant

Martin Lehman, Respondent, v. Lewis Mayer, Defendant; Edward J. H. Tamsen, as Sheriff of the County of New York, Appellant. Replevin—a sheriff cannot be compelled to take property from one not a party to the action. A sheriff should not he compelled to execute a requisition of replevin and to> take into his possession property which is in the possession of persons who are not parties to the action nor to the motion to compel such action on his part, and who are not shown to he the agents of the defendant or in anywise connected with him. Appeal by Edward J. H. Tamsen, as sheriff of the city and county of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1896, requiring him to execute a requisition of replevin, and to take certain property into his possession. Benjamin N. Cardozo and Burritt S. Stone, for the appellant. B. F. Einstein, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The only party defendant to this action was Lewis Mayer. Ruscher & Muller, in whose possession the tobacco which is the subject of the action was, are not parties to the action, and there is nothing in the papers upon which this motion was made tending to show that they are agents of the defendant, or have any connection with him whatever. The requisition upon the sheriff authorizes the taking of the property only from the defendant named in the action, or his agent. It is no protection to him if he takes the property from any other person. (Otis v. Williams, 70 N. Y. 208; Bullis v. Montgomery, 50 id. 352.) Ruscher & Muller being neither parties to this action nor to the motion, the order to the sheriff requiring him to take the property from their possession would be no protection whatever to him in an action brought by them for the trespass which he must necessarily commit in executing against their property process which had been delivered to him against the property of another person. There is nothing in the facts shown upon this motion, from which it can be inferred that the proceeding was taken under chapter 633 of the Laws of 1895, and consequently the provisions of that statute need not be considered. No foundation was,laid for the granting of such an order, and it must be reversed, with ten dollars costs and disbursements. Present — Barrett, Rumsey, Patterson and Ingraham, JJ. Order reversed, with ten dollars costs and disbursements.