§ 7102.Seizure of chattel on behalf of plaintiff.

Subd (a) and (b) of this section are derived from CPA § 1092, the first sentence of § 1095 and all but the last two sentences of § 1099. CPA § 1094 authorized replevy of a chattel only when or after a summons was issued, while CPA § 1092 permitted a replevy before service of summons. When read together, they would seem to have authorized a replevy any time before service of the summons as long as a summons had been issued. The mere issuance of a summons, however, has no legal effect on an unserved defendant and if this is the distinction which was intended it is of doubtful utility. It seems clear that mere failure to serve a summons does not deprive the court of jurisdiction in rem with respect to the seized chattel. Kurzweil v Story & Clark Piano Co. 95 Misc 484, 159 NY Supp 231 (NYC Ct 1916); Devonia Discount Corporation v Bianchi, 241 App Div 838, 271 NY Supp 413 (2d Dept 1934). In the Devonia case, it was held that where the defendant subsequently rebonds and reclaims the seized chattel, the court will have no jurisdiction thereafter to render a valid judgment in favor of the plaintiff, in the absence of service of summons. Implicit in this holding was the proposition that the mere reclamation and rebonding of the seized chattel by the defendant was not the equivalent of a general appearance in the action, and the court was therefore without jurisdiction in personam over the defendant. Prior to 1952, therefore, it appeared that in the absence of service of summons, a court had jurisdiction to render a valid judgment in an action to recover a chattel only so long as the defendant did not exercise his statutory right to reclaim the chattel. In 1952, however, CPA § 1105 was amended to provide that a person reclaiming the chattel was thereafter deemed to be a party to the action. Laws 1952, c 829. That amendment would seem to have overturned the rule of the Devonia case. See § 7103(c). Furthermore, the Devonia case seems to ignore the fact that, as a condition of being permitted to reclaim the chattel, the defendant is required to give an undertaking, and even though the court may be considered to be divested of custody of the chattel by the reclamation—a surprisingly restrictive view of a court’s power—it would presumably retain jurisdiction to adjudicate on the basis of this undertaking in the same way as it does on attachment. Cf. CPA § 1092. In the absence of service on a defendant, no enforceable money judgment for damages for wrongful taking or detention, or for the value of the chattel, in the alternative to a specific judgment for the chattel, could be rendered against him. Such money judgments are clearly judgments in personam for which jurisdiction over the person of the defendant is essential. Unless the defendant actually received notice of the proceedings under a provision such as §§ 307 et seq., he would not be bound by the adjudication. See Florence Trading Corp. v Rosenberg, 128 F2d 557, 560 (2d Cir 1942) (title and possession of property could not be adjudicated without acquisition of jurisdiction over the defendants in possession). The last sentence of § 60 of the New York City Municipal Court Code has been used as a model for the first sentence of subd (b). A complaint is required to be served with the summons because of § 3012. Where, before the replevy is made, an action has been commenced in the usual manner, no jurisdictional problem is presented by the seizure. Under this section, no chattel could be seized from the possession of a defendant before commencement of an action unless there were placed in the hands of the sheriff a summons and complaint, as well as the usual affidavit, undertaking and requisition. Service on the person in possession would give the court power to decide whether the plaintiff rather than such person should have the chattel. Should the plaintiff wish to bind anyone other than the person served by the sheriff, he would have to serve him and make him a defendant. If the defendant is not amenable to personal service within the state, personal service outside the state can be made or an order for service by publication obtained under §§ 313, 314 and 315. To avoid any doubt about the applicability of §§ 314 and 315, there has been inserted at the end of the paragraph 3 of § 314 the words “or a chattel of such person has been seized in an action to recover a chattel.” Paragraph 2 in § 314 might not be in point since the action could be one affecting “possession” rather than “title.” The second sentence of subd (b) requiring service by the sheriff of the undertaking, requisition and affidavit is derived from CPA § 1099. It is necessary in view of the short period during which the sheriff has to wait before turning the chattel over to the plaintiff under subd (f).

Subd (c) of this section is derived from CPA § 1096. The identification of the chattel or chattels in the affidavit will be sufficient if the sheriff is thereby enabled to locate the chattel described. McCarthy v Ockerman, 154 NY 565, 49 NE 153 (1898). If he is unable to find the chattel, he will return the affidavit to the plaintiff with a request for a more precise description. No objection to the details of the description should be allowed where the sheriff found and seized the right chattel. Farrell v Stuart, 152 NY Supp 986 (Sup Ct App T 1915). Subparagraph 3 of this subdivision requires that the affidavit state whether or not an action to recover the chattel has been commenced. This statement will enable the sheriff to ascertain what service is required under subd (b). Subd 3 of CPA § 1096 is omitted as unnecessary since the showing necessary to authorize a replevy is a showing of wrongful detention at the time the replevy is sought, whether it is sought at or after the commencement of the action. Subdivision 4 of CPA § 1096, covering the alleged cause of detention, has also been omitted as unnecessary, as have subds 5 and 6. The latter are rendered unnecessary because of the omission of CPA § 1089. See notes to § 7101.2. The last paragraph of CPA § 1096 is also omitted. Defects in the affidavit should be governed by the general rule prescribed by rule 2101(f). Under former law, a defect in the affidavit was considered a mere irregularity and not a jurisdictional defect, and no change in this respect is intended. See 17 NY Jud Council Rep 259–61 (1951). CPA § 1110 is omitted. Cf. notes to § 3020(d).

Subd (d) of this section is derived from part of CPA §§ 1094 and 1095. It is intended that the plaintiff have the option of addressing the requisition to either a named sheriff of a particular county or to “the sheriff of any county.” Subd (e) of this section is derived from CPA § 1098. In place of the former provision for at least two sureties, the new provision substitutes the requirement of sufficient surety, thus referring to the general undertaking provisions of the CPLR, and § 2502 in particular. If the surety furnished is deemed insufficient, provision is made for exceptions to be taken. See subd (f) and notes thereto. CPA § 1098 included a reference to abatement or discontinuance of the action or no judgment rendered, but did not provide to whom the chattel was to be delivered in such event. This reference to abatement and discontinuance is omitted. Where the action is not prosecuted, defendant should move to dismiss and for return of the chattel in the judgment. On death, § 1015 applies. On discontinuance or dismissal, whether or not on the merits, § 7108(a) requires a judgment returning the chattel to the possession of the person from whom it was seized. The language of this subdivision is designed to cover the undertaking of the defendant or a third person reclaiming the chattel as well as the plaintiff’s undertaking for the seizure. See subd (a). The nature and purpose of these undertakings is sufficiently similar to justify treating them together. CPA § 1105 expressly provided that it was the value of the chattel stated by the plaintiff in his affidavit which determined the value of the chattel for the purposes of subsequent undertakings given by other parties to the action who sought to reclaim the chattel. See 13 Carmody-Wait, Cyclopedia of New York Practice 212–13 (1954). The plaintiff is under some pressure not to understate the value of the chattel since his valuation constitutes an admission which may be used against him on the trial. The condition of the undertaking as stated in CPA § 1098, that the plaintiff will prosecute the action, is omitted. If he does not do so, the person harmed should move to dismiss for failure to prosecute. Moreover, service of summons at the time of seizure where no action has yet been commenced is required under subd (b). Objections to surety and justification of surety are covered by article 25, obviating the need for CPA §§ 1104 and 1105. The general provision for exception to surety in § 2506 differs from the provision for exceptions after a replevy only in the amount of time within which exceptions may be taken. It is ten days from receipt of the undertaking under § 2506 and three days under CPA §§ 1104 and 1105. It is desirable that the chattel be detained in the hands of the sheriff pending transfer to the plaintiff for as short a period of time as possible. The traditional rule stated in the last sentence of CPA § 1107 that the sheriff is responsible for the sufficiency of the sureties of any party while the chattel is in his possession is covered by § 7106(b). In the event that the plaintiff’s undertaking is without sufficient surety, and the plaintiff is otherwise financially unable to respond to a money judgment for damages, the person from whom the chattel is taken is permitted to seek his damages caused by the replevy from the sheriff. Spellman v Spellman, 203 App Div 373, 196 NY Supp 664 (3d Dept 1922). Although a sheriff who wrongfully delivers a chattel to a person not entitled to possession may be as culpable as the person wrongfully accepting the chattel from the sheriff, the primary responsibility for damages caused should be placed on the party who accepts the chattel at the peril of becoming liable on his undertaking. This has been the result reached by the courts despite CPA § 1108 which seems to have provided for primary liability by the sheriff. It has been held that there is no damage, and hence no liability of the sheriff for damages, if the misdelivery is covered by an undertaking of the recipient with sufficient sureties. Spellman v Spellman, 203 App Div 373, 196 NY Supp 664 (3d Dept 1922).

See § 7106(b). CPA § 1108 is therefore omitted as being contrary to former law. The final sentence makes it clear that while a person claiming only a lien on a chattel may not reclaim possession, he may except to the sureties.

Subd (f) of this section is derived from part of CPA §§ 1101, 1103, 1104, and 1107. The first sentence of this subdivision prescribes a period of three days from seizure within which the sheriff must retain possession of the chattel. As a practical matter, although the defendant has ten days to object to a surety, he will have to object within three days if he wants to prevent the sheriff from turning over the chattel. See notes to § 2506. Where the sheriff received notice of exception to sureties, he will be required to hold the chattel until the outcome of the justification procedure. If no motion to justify is made within ten days after an exception to sureties is made the undertaking fails and the chattel will be returned to the person from whom it was seized. See § 2507(b). The sheriff’s duty to turn over the chattel upon receiving papers needed to reclaim the chattel or a motion to impound is covered by § 7103. Where the sheriff receives notice of the application for an impounding order, he must retain the chattel until determination of the motion. Where he is served with the notice, affidavit, and undertaking to reclaim the chattel under § 7103(a) he must retain the chattel for three days after receiving such papers, and where no exceptions to sureties on the undertaking have been taken or no motion for an impounding order has been made within ten days after service of such papers on him, the sheriff should deliver the chattel to the person reclaiming it. See § 2506, providing that if exceptions to surety on an undertaking are not taken within the prescribed time, the undertaking is allowed. Where more than one person seeks to reclaim or reclaim and impound, the sheriff awaits the court’s order before turning over the property. See § 7103(a).

Add, L 1962, ch 308; amd, L 1971, ch 1051 § 1; L 1978, ch 81, § 1, eff Jan 1, 1979; L 1992, ch 216, § 13; L 1994, ch 563, § 9, eff July 26, 1994.