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Hyman v. Hild

Decided: September 28, 1940.

LOUIS HYMAN, PLAINTIFF-APPELLANT,
v.
CHARLES E. HILD AND COLONIAL LUMBER AND TIMBER CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



In replevin. On appeal from the Third Judicial District Court of the county of Bergen.

For the plaintiff-appellant, E. Gustave Greenwald (Aaron Heller, of counsel).

For the defendants-respondents, Louis A. Schiffman and Feder & Rinzler (by Morris Dobrin), (Feder & Rinzler, of counsel).

Before Justices Trenchard, Bodine and Porter.

Porter

The opinion of the court was delivered by

PORTER, J. This is a suit in replevin for the possession of certain goods and chattels consisting of machinery, tools,

&c., located in Wallington, Bergen county. The court sitting without a jury rendered a verdict in favor of the defendant.

It appears from the settled state of case that the chattels in question were used in the business of Modern Body Works, Inc. (hereinafter called Modern Co.), and were located in premises owned by Louis Hyman, appellant, who distrained for rent due him from Modern Co. and who purchased same in the distraint proceedings at a sale held April 20th, 1938. The appellant's claim of possession rests on his purchase of the chattels at this sale as evidenced by the bill of sale from the constable in charge dated April 20th, 1938. Appellant instructed the said constable not to impound the chattels. He permitted Modern Co. to retain possession and to continue to use same and to remain in his said premises.

It further appears that Charles E. Hild, respondent, was sergeant-at-arms of the District Court of the Second Judicial District of the county of Bergen and that he conducted a sale of the chattels on June 18th, 1938, pursuant to an execution in accordance with a judgment recovered in that Court by the Colonial Lumber and Timber Co., respondent (hereinafter called Colonial Co.), against Modern Co. and that Colonial Co. purchased the same at the sale. Possession of the chattels was obtained by Colonial Co. under an order for possession entered in that court on the basis of the sale of June 18th, 1938, possession having been in Modern Co. up to that time.

The question before the trial court on the proofs was whether or not the appellant had established his right to possession. Was there any invalidity in the distraint proceedings which made his bill of sale void?

It is argued by the respondent that the distraint proceedings were a nullity and therefore the bill of sale to appellant void because the provisions of N.J.S.A. 2:58-35 and 2:58-36 were not complied with in that the requisite notices were not given and that neither the sheriff, under-sheriff nor a constable of the place "where in the distress shall be taken" acted in the premises. It does not appear from the state of case that the statutory notices ...


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