Fulmoth Donovan and Richard J. Donovan, Copartners Doing Business under the Firm Name and Style of F. Donovan & Son, Respondents, v. Arthur Stuber, One of the City Marshals of the City of New York, Appellant

Fulmoth Donovan and Richard J. Donovan, Copartners Doing Business under the Firm Name and Style of F. Donovan & Son, Respondents, v. Arthur Stuber, One of the City Marshals of the City of New York, Appellant. Second Department, January 8, 1909. Pleading — complaint stating cause of action in replevin. A complaint in replevin against a city marshal to recover property seized on execution against a chattel mortgagor which alleges that the plaintiffs are owners and entitled to possession, should not be dismissed for failure to state a cause of action merely because it also sets forth the fact that the plaintiffs became owners of the mortgaged chattels by assignment from the mortgagee after the mortgagor’s default. Appeal by-the defendant, Arthur Stuber, one of the city marshals of -the city of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 25th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes. Phillips & Samuels, for the appellant. Ralph K. Jacobs, for the respondents. [MAJORITY — Woodward, J.:] Woodward, J.: John S. ahd Mamie Donovan, on the 10th day of July, 1907, gave a chattel mortgage on certain horses, harnesses, etc., then owned by them, to one Valentine Wachtel. The latter discounted the notes taken in connection with such chattel mortgage at the North Side Bank, and delivered the chattel mortgage as security therefor. Subsequently the Donovans defaulted, whereupon the North -Side Bank seized possession of the chattels, and Fulmoth Donovan & Son, the plaintiffs in this action, purchased the notes and mortgage from the bank, which delivered the chattels to the plaintiffs. On the 16th day of November, 1907, the defendant, a city marshal, seized the chattels under executions against John S. and Mamie Donovan, and the plaintiffs brought this action in replevin. The jury has found a verdict in favor of the plaintiffs, and the defendant appeals. It is urged that the court erred in refusing to dismiss the complaint at the opening on the ground that it does not state facts sufficient to constitute a cause of action. We think the complaint was not open to the objection urged. The complaint alleged that the plaintiffs are the owners and are entitled to the possession of the property, and the subsequent statement of the facts.showing how they become such owners does not detract from the allegation. The case is clearly distinguishable from Sheridan v. Jackson (72 N. Y. 170) and other authorities relied upon by the appellant. The evidence, we believe, clearly established that the. chattels referred to in the mortgage were the same as those recovered in this action and mentioned in the complaint, and under the stipulation that “ on the 22d day of October, 1907, the North Side Bank of Brooklyn caused the chattels described in paragraph III of the complaint to be seized and taken from the possession of John S. Donovan and Mamie Donovan,” it is difficult to understand how the defendant can complain of the charge of the learned court to the jury. The judgment appealed from should be affirmed. Gaynor, Rich and Miller, JJ., concurred. judgment and order affirmed, with costs.