#### George Rushbrook, Plaintiff, *v.*Herman Jerge et al., Defendants.

(County Court, Erie County,

October, 1911.)

Replevin — Liability on undertaking — Actions — Conditions precedent.

Where In an action of replevin the defendant does not reclaim the chattels and the complaint is dismissed on the plaintiff’s default, the defendant may maintain an action on the undertaking without first obtaining the return of an execution unsatisfied.

Section 1733 of the Code of Civil Procedure, requiring the return of an execution upon a final judgment in favor of defendant in such a case before bringing suit upon the undertaking, does not intend a judgment of dismissal on plaintiff’s default but a judgment for the return of the chattels replevied or for damages. •

Action of replevin.

Calvin S. Crosser, for plaintiff.

Charles Newton, for defendants.

Taylor, J.

In an action of replevin, brought in a justice’s court in this copnty against this plaintiff by one Weisberg, the ’ defendants herein were the sureties on said plaintiff’s undertaking. This plaintiff, the defendant in said replevin action, did not reclaim the chattels replevied under section 2925 of the Code of Civil Procedure. On the return day in said action "the plaintiff did not appear and the justice entered a non-suit with costs.

The action at bar is one against the sureties upon plaintiff’s undertaking in said replevin action and the defendants come into court and move to dismiss the complaint under section 1733 of the Code of Civil Procedure, upon the theory that the defendant in the replevin action recovered a final judgment therein and, therefore, cannot maintain this action because hé has not preliminarily issued and had returned an execution as specified in said section 1733. This section is *44made applicable to the situation here presented under section 2931 of the Code of Civil Procedure; " •

Por the reason that the plaintiff in the replevin action defaulted on the return day, the defendant, of course, could neither file an answer, nor was he able to obtain a judgment awarding him possession of the chattels or damages on account of some special property in the chattels in himself,- or on account of the chattels having been distrained" being damaged, or because the property had been delivered to the plaintiff and the defendant damaged thereby. It is clear to me that one of the varieties of judgment just mentioned must be the kind of a “ final judgment ” necessarily intended by the wording of said section 1133, and the only kind upon which an execution mentioned in said section could be issued. Dickson v. Bickershoff, 48 Misc. Rep. 353.

It is equally plain, therefore, notwithstanding the ingenious arguments of defendants’ counsel, that the proceedings • taken by the justice of the peace on his return day did not re¡sult in a “ final judgment ” under section i/733; wherefore an execution pursuant to said section is not a prerequisite to the bringing of this action. And so, although the justice’s court action -did not “ abate ” as plaintiff states in his cotnplaint herein by way of surplusage and as an incorrect conclusion of law, I believe that the complaint does state facts sufficient to set forth a' cause of action for damages against the sureties on an tindertaking which, among. other things, insured the prosecution of the.action (Code Civ. Pro., § 1699) by the plaintiff. The amount of damages recoverable herein is a matter to be determined later. But this motion must be denied.

Motion denied.