Cary Manufacturing Co. v. Malone — 131 A.D. 287

Majority

p. 287

Cary Manufacturing Company, Appellant, v. Bernard J. Malone, Respondent.

Second Department,

March 12, 1909.

Headnote

Replevin-^failure to fix value of property—new trial

Where a defendant in replevin claims only a special interest in the chattel, and the jury failed to fix the value of tlie property as directed by the court a general verdict awarding him a certain sum, together with the possession of the property, should he .set aside and a new trial granted.

Appeal by the plaintiff, the Cary Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of June, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

A. G. N. Vermilya, for the appellant.

S. Clinton Crane, for the respondent.

This appeal is from a judgment in favor of the defendant in a replevin action. The property which was the subject of the action consisted of a quantity of wire and various tools and machinery used in rolling iron. The title to this property was in dispute and ■the question of the ownership and right to the possession of the various articles was- litigated upon the trial. Defendant claimed a

p. 288

special interest in the machinery, and after a careful review of the evidence I am inclined to the view that if he had any legal claim to the property it was confined to this interest, though the claims of the parties were of such a nature as to require the verdict of the jury, to respond to the issues presented.

The learned justice presiding at the trial instructed the jury that they must fix the value, of the property taken, and it Was their duty to do this. (Code Civ. Proc. § 1726.) The instruction was ignored, however, and a general verdict rendered in favor of the defendant, upon which a judgment has been entered adjudging that the defendant recover the sum of $800.28, with costs, and that the defendant recover of the plaintiff the possession of the personal property described in the complaint. There is no way of ascertaining what the. verdict represents. It should' have shown whether defendant was a general or special owner, and if it was intended as a general verdict in favor of the defendant on the ground that he was the owner, it was against, the weight of the evidence. The verdict was irregular, and the refusal to grant plaintiff’s motion for a new trial was error.

The judgment and order must, therefore, be reversed and. a new trial granted, costs to abide the final award of costs.

Woodward, Jenks and Gaynor, JJ., concurred; Miller, J., voted to reverse on the ground that the verdict is against the weight of evidence.

judgment and order reversed and new trial granted, costs to abide the final award of costs.