and published his last will and testament, a copy whereof is hereto annexed, and forms part of this complaint; in and by which will he devised to the plaintiff the following therein mentioned and described premises, to wit: [Insert description.]

That said will has been duly admitted to probate by the surrogate of Rensselaer county, as a will of both real and personal estate.

That said M. R., therein appointed the defendent his sole executor, as by reference to the same will more fully appear, and that said defendant has been duly qualified to act as such executor.

That said defendant, among other things, took into his custody and possessed himself of all the title deeds, evidences and writings belonging or relating to the same premises so devised to the plaintiff.

That the plaintiff has requested the said defendant to deliver to him or to his order the said deeds, evidences and writings, but the defendant has refused and still refuses so to do.

Wherefore the plaintiff demands judgment, that the defendant may be compelled to deliver up to him, on oath, all deeds, evidences and writings, in his possession or under his control, belonging to or relating to said lands and premises so devised to the plaintiff; or for such other, &c., [as in No. 1.]

(No. 72.)

By a sheriff, against an auctioneer storing goods and claiming a lien thereon, praying a delivery of the goods and an accounting, to ascertain amount of claim, and a receiver and injunction.

SUPERIOR COURT-OF THE CITY OF NEW-YORK.

John Orser, sheriff of the city and county

of New-York,

agt.

James Brown.

Complaint.

John Orser, the plaintiff in this action, complains and alleges :

That he is, and has been since the 1st day of January, A. D. 1853, sheriff of the city and county of New-York. That, as such sheriff, he has been charged with the service of various executions against the property of judgment debtors, attachments issued under the 4th chapter of title 7, of part 2d, of the Code of Procedure, and also process to obtain the delivery of the possession of personal property, issuing out of this court and out of the Supreme Court and Court of Common Pleas, of the city and county of New-York.

That under the said different kinds of process, and in executing the same, he has, at various times, taken into his possession large amounts of personal property, which he has detained to answer the exigencies of said process, pursuant to law.

That the said defendant has been, during the plaintiff's term of office, an auctioneer, having his store for that purpose at No. street in said city, and has usually acted as the auctioneer in making sales of

in

personal property which this plaintiff was required to sell under execution, and under order of the various courts of record; and for the purpose of facilitating him in making such sales, and at the same time of having the sale conducted at a public place where it would be likely to sell to advantage, the plaintiff has allowed much property, held by him under levy under attachments and executions, to be removed to and placed in and upon the aforesaid premises of the defendant, and the defendant has realized large gains and profits from the sales so made by him.

That the defendant also desired this plaintiff to send to his said auction store property which came into his possession in the performance of his duty, under the provisions of the Code of Procedure, in actions to recover the possession of personal property, and plaintiff has, from time to time, caused large amounts of personal property, so in his custody, to be taken to said store to remain there during the time he was by law required to retain the same in his custody.

That, as plaintiff is informed and believes, the said defendant has, from time to time, received, for taking care of said property, considerable sums of money from the parties who became (pursuant to the provisions of law,) entitled to a delivery thereof from this plaintiff, and also from parties who became entitled to property levied upon under attachments and executions, and placed in said defendant's store, when the attachments and executions were paid or discharged or vacated, so that a sale of the said property was unnecessary.

That it never was intended or agreed by this plaintiff or defendant that any charge or claim should be made against this plaintiff, or any lien be held by the said defendant, upon the goods so removed to the defendant's store, for storage, the said defendant only relying upon receiving as

a compensation such sum as the parties interested in the process would allow to him for his service as auctioneer, or for allowing said goods to remain in his said store.

That said defendant was at all times well aware that said goods and personal property were only in plaintiff's custody as the officer of the law, and were only held by him to answer the exigencies of the process under which the same were taken and held. That there now remains a large amount of property in the custody of this plaintiff as such sheriff, on deposit in the store of said defandant, and amounting to many thousands of dollars in value, which plaintiff is willing and desirous to remove from the said store.

That said defendant now claims to have a lien upon the said goods and personal property for storage, and has presented to plaintiff bills of charges therefor, and claims and insists upon his alleged right to detain the said goods and personal property as security for the payment of the said bills, and has recently threatened to sell the said goods and personal property, and has caused to be served on this plaintiff a notice, of which the following is a copy: [ Insert notice.]

That the said bills and charges so presented and demanded are exorbitant, and far more than a reasonable and just and fair compensation to the said defendant for the storage of the said goods, and his said claims amount to several thousand dollars.

That plaintiff is informed and believes that as to much of said property, so in the store and premises of said defendant, he, the said plaintiff, will be liable to and will incur heavy penalties, as well as required to pay the value of said property, unless he is able to deliver the said property to the parties who shall be entitled to a delivery thereof from him as such sheriff.

That in order to avoid all difficulty with regard to said property, and to obtain the manual possession thereof forthwith, he has offered to pay a fair and reasonable sum for the storage of the said goods, and has desired the said defendant to fix and agree upon some amount or sum less than that demanded by him, and which would fully compensate him for any trouble he may have had with or care he may have bestowed upon the said property, but that said defendant refuses to reduce his charges or to agree other sum.

upon any

The plaintiff is informed and believes that various articles of property, so left at the store of the said defendant, have been by his carelessness and negligence lost, and other articles have been destroyed, and others damaged and injured. That plaintiff has been, from time to time, required to pay for articles of property so lost, destroyed, damaged and injured, and said defendant is indebted to plaintiff for goods so lost, destroyed, damaged and injured, to a very large amount, and more than any amount which said defendant may be entitled to charge for any goods now on his premises.

Wherefore the plaintiff demands judgment, that the said defendant forthwith deliver all the said property to the plaintiff; that a receiver thereof may, in the mean time, be appointed; that an accounting may be had between plaintiff and defendant; that the amount (if any) to which said defendant is entitled for storage, labor or cartage upon the said goods or chattels or property, over and above any legal demand of this plaintiff against said defendant, may be ascertained in such manner as this court shall determine.

That in the mean time the said defendant may be enjoined and restrained from selling, injuring, removing or disposing of the said goods, wares and merchandise, or any