F.A. NORTH CO. v. McCLELLAN, 116 N.J.L. 145 (1936)

182 A. 875

F.A. NORTH COMPANY, A CORPORATION, PLAINTIFF-APPELLANT, v. JAMES R. McCLELLAN AND SARAH McCLELLAN, DEFENDANTS-RESPONDENTS.

Court of Errors and Appeals.Submitted October 25, 1935 —
Decided January 31, 1936.

On appeal from the Supreme Court.

For the appellant, Waddington Mathews.

For the respondents, William Charlton.

PER CURIAM.

This is an action in replevin instituted in the Supreme Court, Mercer Circuit, to recover the possession of a piano. The court struck out the defendants’ counter-claim which was filed with the answer. The writ of replevin was issued April 2d 1928, and on April 3d 1928, a demand for the delivery of the property was given to the sheriff, who on the last mentioned date, served both the demand and writ upon the defendants. The court directed a verdict in favor of the defendants, on the ground that the suit had been instituted before any demand for the return of the piano was made, relying upon the cases of Veader v. Veader, 87 N.J.L. 140, and Crown Co. v. Reilly, 88 Id. 590, which were approved by this court in Voorhees v. Thomas, 107 Id. 134.

Page 146

We think the action of the trial court was proper, and the judgment will be affirmed.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 13.

For reversal — None.