Opinion
March, 1899.
Bennett Silverman, for appellant.
James, Schell, Elkus McGuire (A.I. Elkus, of counsel), for defendant Wielar, respondent.
On December 1, 1898, a replevin writ was issued herein, and, together with the affidavit and undertaking on which it was issued, was served on the defendant Joseph Wielar.
The chattels required to be replevied were described in the requisition and affidavit as follows: 2 6-0 elliptic solid copper lining; 1 6-0 octagon solid copper lining, full glass; 1 6-3 elliptic zinc plated, full glass; 1 5-9 elliptic zinc plated, full glass, etc.
No summons was served on the defendant Wielar, and he did not interpose an appearance in the action until December 8.
On December 3 defendant Wielar obtained an order to show cause, based on his affidavit annexed thereto, and on the papers served on him, as aforesaid, and on which the replevin writ was issued, returnable on December 5th, why an order should not be made vacating, setting aside, declaring null and void and cancelling the writ of replevin issued herein, and the requisition thereon indorsed, on the ground that the chattels sought to be replevied herein are insufficiently described and not in compliance with the requirements of the Code.
On December 5th, when the said motion came on for argument, Mr. Silverman, one of the plaintiff's attorneys, appeared in opposition to the said motion and applied for an adjournment of one day in order to present affidavits.
Counsel for the motion thereupon offered to have it heard upon the original papers, upon which the writ issued solely, which offer was accepted by the plaintiff's attorney, whereupon the argument was proceeded with, and related to the sufficiency of the original affidavit and requisition merely.
The appellant now raises the point that the defendant Wielar had no standing in court at the time said motion was made by him, for the reason that he had not appeared either generally or as required by section 421 of the Code or specially. Douglas v. Haberstro, 58 How. Pr. 276.
This is untenable. A general appearance of a defendant is a waiver of any irregularity in the affidavit on which the requisition is founded. Hyde v. Patterson, 1 Abb. Pr. 248.
If a party does not want to waive an irregularity by a general appearance, he must appear specially. Reed v. Chilson, 142 N.Y. 155.
The record does not explicitly show how the defendant appeared on the motion; but not having appeared generally plaintiff must treat him as having appeared specially. Couch v. Mulhane, 63 How. Pr. 79.
Neither the order appealed from, nor the record on which it is based, show that the appellant on the argument of the motion raised the question of defendant's appearance in either capacity, and by failing to do so, he waived any irregularity in the appearance.
The affidavit of the defendant Wielar, on which the order to show cause of December 3 was obtained, sets forth the reason why an order to show cause and an extension of time to rebond the chattels is applied for; but nothing is contained therein which adds or detracts from the affidavit upon which the replevin writ is issued, nor from the description of the chattels therein mentioned. It merely states that under the replevin writ property was taken from him, consisting of thirty-two caskets.
We think that the affidavit upon which the requisition of replevin was issued was clearly defective in not particularly describing the chattels to be replevied. § 1695 of the Code; Schwietering v. Rothschild, 26 A.D. 614; Devoe v. Selig, 25 Misc. 411.
Order appealed from is affirmed, with costs.
The appeal from the other order made herein at Special Term on December 14, 1898, denying the motion made by plaintiff to vacate and declare null and void the said order of December 8th, involves the same questions considered on the appeal from the latter order.
Order of December 14th appealed from is affirmed, with costs.
FITZSIMONS, Ch. J., and CONLAN, J., concur.
Orders affirmed, with costs