Leo Oppenheim, Appellant, v. Jacob Lewis and Others, Respondents

Leo Oppenheim, Appellant, v. Jacob Lewis and Others, Respondents. Res ad judicata by an order—replevin -¡- a dismissal of the complaint as to the defendants other than the sheriff— it does not authorize a direction to the plaintiff to return to the sheriff the chattels replevied. An order not appealed from and unreversed is conclusive against the right of the moving party to the same relief on a second motion. Semble, that where the complaint, in an action of replevin,' is dismissed as to defendants, other than the sheriff, and no right is reserved to them to make any further application in the matter, they are not entitled to an order directing the return to the sheriff by the plaintiff of the goods which he had replevied. Appeal by the plaintiff, Leo Oppenheim, 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 4th day of January, 1897, directing the return of certain personal property to the sheriff of the county of New York, from whose possession it was taken by the plaintiff. Wales F. Severance, for the appellant. Abr. R. Joseph, for the respondents. [MAJORITY — Per Curiam:] Per Curiam: It appears from the "papers in this case that the complaint was dismissed as to the defendants Lewis and Fordinsky on the 25th of August, 1896. The order dismissing that complaint reserved no right to make further application, and that order "stands without modification. Subsequently, and on the 2d of October, 1896, a motion for the same relief which was granted herein was made at a Special Term held by Mr. Justice Russell, who denied the motion, and that order stands unappealed from and unreversed. That order is a conclusive decision against the right of the defendants to have the relief which they asked for here. The question as to the right to grant such relief in an action of a similar nature was submitted to the court in the case of Sheehan v. Golden (85 Hun, 462), in which it was held that the defendants other than the sheriff, upon dismissal of the complaint, were not entitled to judgment that ■ the goods replevied be delivered to the sheriff. For these reasons the order should be reversed, with ten dollars costs and disbursements. Present — Patterson, Rumsey, Williams, O’Brien and Parker, JJ. Order reversed, with ten dollars costs and disbursements.