Frederick W. Heinrich, Appellant, v. Jessie Van Wrickler, Respondent

Frederick W. Heinrich, Appellant, v. Jessie Van Wrickler, Respondent. Demand before replevin of a chattel lawfully acquired by the defendant. An action to replevy a chattel, the possession of which was lawfully acquired by the defendant, cannot be maintained unless the plaintiff has made a demand for the return of the chattel. Appeal by the plaintiff, Frederick W. Heinrich, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, entered on the 5th day of August, 1902, upon the dismissal of the complaint at the close of the plaintiff’s evidence. William Morris, for the appellant. Fred G. F>e Witt, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : This is a suit in replevin for the recovery of a piano in the possession of the defendant under a contract of conditional sale. As such possession was lawfully acquired, it was necessary for the plaintiff to prove a demand for the return of the chattel in order to maintain proceedings and an action in replevin. This he failed to do and the Municipal Court justice dismissed the complaint on account of this defect in the proof. While there was evidence of a demand, it was of a demand addressed, not to the defendant herself, but to a person or persons not shown to have any custody or control of the property. The so-called demand made by the marshal upon the defendant personally appears to have been nothing more than a statement to the effect that he had replevin papers to replevy the piano, after he had broken in her door in order to gain access to it. The judgment should be affirmed. Present — Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ. Judgment of the Municipal Court affirmed, with costs.