Julius Levy, Appellant, v. George Hohweisner and William Hohweisner, Respondents

Julius Levy, Appellant, v. George Hohweisner, and William Hohweisner, Respondents. Replevin in the'Municipal Court of New York city—when the possession of the chattel should not be awarded to the defendant— the Appellate Division may modijy a judgment which does —plea of title in a third person — the third person may be called as a witness though he does not interplead and defend — right where judgment for a return is not demanded to maintain á subsequent action therefor. A final judgment rendered in favor of the defendants, in an action brought in the Municipal Court of the city of New York to replevy a chattel, should not, where the chattel has been replevied by the plaintiff and the defendants have not required a return thereof and have neglected to demand judgment for the return of the chattel as they were authorized to do by section 117 of the Municipal Court Act (Laws of 1902, chap. 580), award possession of the chattel to the defendants. If the final judgment improperly awards the defendants possession of the chattel the Appellate Division has power to modify such judgment on appeal. Where the defendants set up in their answer title in a third person, they may call such third person as a witness, irrespective of'the fact that the third person did not avail himself of the provisions of section 115a of the Municipal Court Act authorizing a third party claiming title to the chattel to interplead and defend. In such a case the omission of the defendants to demand judgment for a return of the chattel does not preclude them from maintaining a subsequent action to regain possession .of the.chattel, subordinate to the title of'the third person. Section 115a of the Municipal Court Act does not affect or limit section 117 of that act. ’ • Appeal by the plaintiff, Julius Levy, from. a judgment of the Municipal Court of the city of New York in favor off the defendants, entered on the' 28tli day of July, 1904, awarding them possession and costs in a replevin suit. Louis Burstein,. for the appellant. M. H. Newman, for the respondents. [MAJORITY — Jenks, J.:] Jenks, J.: We think that in the absence of the plea"authorized by section 117 of the Municipal Court Act, and of any proof that the defendants had required a return, of the chattel, the final judgment in this action cannot award possession of the chattel to the defendants. (Mun. Ct. Act, § 123.) The judgment, however, may be- modified on this appeal. (Mun. Ct. Act, § 310; Christiansen v. Mendham, 45 App. Div. 554; Fitzhugh v. Wiman, 9 N. Y. 559.) The defendants under their answer of. title in a third'person Were entitled to offer evidence of the title of Walker, and consequently, to call Walker as a witness, irrespective of the fact that Walker had not availed himself of the provisions of section 115a of the Municipal Court Act (added by Laws of 1903, chap. 431), for that section, in our opinion, does not affect or limit .section 117. The omission of the defendants to pray judgment for a return does not preclude them from any subsequent action to regain possession thereof, of course, subordinate to the title of Walker. . (Brady v. Beadleston, 62 Hun, 548; Shepherd v. Moodhe, 8 Misc. Rep. 607.) The judgment.should be modified so as to be for the defendants' on the merits, with fifteen dollars costs, and as modified it should be affirmed, -without costs. Hirschberg, P. J., Bartlett, Woodward and Hooker, JJ., concurred. Judgment of the Municipal Court modified in accordance with the opinion of Jerks, J., and as modified affirmed, without costs. Laws of 1902, chap. 580. — [Rep.