§ 7109.Unique chattel.

This section is new. Equitable replevin, the use of contempt or arrest as a sanction to compel delivery of personal property, was not included in the former statutory provisions for replevin in the civil practice act. Although the courts of most states will entertain an action for specific delivery of property in equity, in which judgments awarding possession of the property will be enforced by punishment for contempt, only eight states have provided for any type of equitable replevin by statute. Some of these states provide the contempt and arrest sanctions only for wilful nondisclosure or nondelivery of property at the commencement of an action to recover a chattel. Others provide these sanctions only for wilful nondisclosure or nondelivery of property after judgment has been rendered. Still others provide for the sanction of contempt or arrest in both cases.

New York courts have long recognized their equitable jurisdiction to compel delivery of personal property of a peculiar nature or value. See Onondaga Nation v Thacher, 29 Misc 428, 61 NY Supp 1027 (Sup Ct 1899), affd, 53 App Div 561, 65 NY Supp 1014 (4th Dept 1900), affd, 169 NY 584, 62 NE 1098 (1901) (Indian wampum belts); Stanton v Miller, 65 Barb 58, 1 T & C 23 (NY 1873), revd on other grounds, 58 NY 192 (1874) (deed to real property); Hammond v Morgan, 51 NY Super 472 (1885), revd on other grounds, 101 NY 179, 4 NE 328 (1886) (documents of assignment and release). They have recognized that the statutory action to recover a chattel is not an adequate remedy at law since it will not insure the return of the particular articles of property. Sylvian Chabert v Robert & Co. 273 App Div 237, 76 NYS2d 400 (1st Dept 1938); Raftery v World Film Corp. 180 App Div 475, 482, 167 NY Supp 1027, 1032 (1st Dept 1917). Under this section, courts should continue to exercise their discretion in the same way as under former law.

In CPA § 1094-a, New York had provided a remedy which approximated equitable replevin in its approach, but which embraced an area in which other less extraordinary remedies will be equally effective to accomplish the same purpose. Section 1094-a, enacted upon recommendation of the Judicial Council in 1937, permitted the examination of any person for the purpose of locating the chattel, and the ex parte order which permitted such an examination might also have a provision enjoining the defendant from disposing of or transferring the property. See 17 NY Jud Council Rep 256–57 (1951). This section is omitted as unnecessary. The first three sentences of the first paragraph and all of the last paragraph are covered in the general disclosure provisions of article 31. The same remedy envisaged by the fourth and fifth sentences of § 1094-a, as it applied to situations before judgment was entered, is also available through the combined use of disclosure procedures under article 31 and the preliminary injunction and temporary restraining order under article 63, followed by a seizure under this article. In the situations after judgment formerly contemplated by the fourth and fifth sentences of § 1094-a, the new CPLR provides the contempt sanction, which should prove more effective than the provisions of former law.

Under subd 2 of CPA § 1126, the execution of the judgment must have required the sheriff to collect the value of the chattel instead of obtaining its return unless it could be found within the county. That provision, in effect, gave to the unsuccessful party the option of satisfying the judgment with the chattel, or, by removing the chattel from the jurisdiction, with its money value. In cases where the unsuccessful party was in possession pendente lite by virtue of the seizure, such a result was manifestly unfair, especially in cases where the chattel had a peculiar or unique value to the successful party. The award of possession of a chattel after a seizure and pending the determination of the action should be considered to be in the nature of a trust, and a refusal to deliver up the chattel after judgment under such circumstances is, on its face, a wilful breach of that trust, which should be redressed by the coercive power of the court acting in personam. The unsuccessful party is in possession of the chattel by virtue of the requisition which is the mandate of the court, and he should be considered to be an agent of the court. The contempt remedy is therefore provided to compel delivery of the chattel after judgment. Under this section, this remedy may also be used by the person originally in possession upon dismissal or discontinuance of the action.

The sanction of contempt is provided, but should be sparingly granted in cases where there has been no seizure, and the judgment in the action to recover a chattel is entered against a party whose possession of the chattel has never been disturbed. In such cases, failure of the successful party to take steps during the action to seize the chattel tends to show that irreparable injury did not result because he was deprived of the chattel. Although such a successful party is entitled to possession of the chattel by virtue of his judgment, the usual enforcement procedures should suffice, in the absence of special circumstances.

No provision for contempt for failure to deliver the chattel to the sheriff before judgment is proposed. CPA § 1094-a, which contained a provision permitting the court to enjoin the defendant from disposing of the chattel before judgment, is omitted. In its stead, the provisional remedy of preliminary injunction may be utilized to accomplish the same result, in appropriate cases. See article 63. Although CPA § 1094-a provided for its order to be issued without notice, while § 6311 permits the issuance of a temporary injunction only upon notice, a temporary restraining order, under § 6313, may be granted without notice pending the hearing on the motion for the preliminary injunction, and these devices will accomplish the purpose formerly served by the restraining order issuable under CPA § 1094-a.

Furthermore, a contempt citation before judgment against the party in possession of the chattel who refuses to deliver it to the sheriff would not be warranted unless it were proved to the satisfaction of the court that the party to be cited was in actual possession of the chattel. The moving party would ascertain the location of the chattel by means of disclosure devices under article 31. If, by means of these devices the moving party learns the exact location of the chattel, he can require the sheriff to seize it. Since, under § 7102(d), the requisition can be directed to the sheriff of any county in the state, and since, under § 7110, physical concealment is no bar to the sheriff’s power to seize the chattel under a requisition, the use of a temporary restraining order, followed by a seizure, will accomplish the desired purpose, and the provision for contempt before judgment is unnecessary.

Under the last sentence of this section, it is provided that the successful party may waive the use of contempt against the unsuccessful party by accepting, instead of the specific chattel, its value as stated in the judgment. Since the successful party is entitled either to the chattel or to its value, but not to both, acceptance of the value of the chattel satisfies the judgment, and the unsuccessful party should not thereafter be held in contempt for failure to comply.

Add, L 1962, ch 308, eff Sept 1, 1963.