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Brawner v. Fahy

64 A.D. 122 Court N.Y. App. Div. English

Delivered by Spring, J.:

Contents

Majority

p. 122
Henrietta Brawner, Respondent, v. John Fahy and Others, Appellants.

Headnote

Judgment in replevin not determining the value of the property — it is a bar to a subsequent action for its value.
A mortgagee of chattels, seized under an execution against the mortgagor, brought an action against the sheriff to replevin the property, alleging in the complaint the value of each specific chattel and also their aggregate value. No proof of value was given at the trial, although that question had been put in issue by the answer; the judgment simply awarded the possession of the property to the mortgagee and did not fix the plaintiff’s damages as required by ■ section 1730 of the Code of Civil Procedure. In the meantime the property had been retaken by the sheriff and sold pursuant to the -execution held by him. Subsequently, after the execution for the property had been issued by the mortgagee and returned unsatisfied, he. commenced an -action against the sheriff to recover the value of such property.
Held, that the prior judgment was a bar to the maintenance of the second action.
p. 123
Appeal by the defendants, John Fahy and others, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the cleric of the county of Monroe on the 6th day of August, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of September, 1900, denying the defendants’ motion for a new trial made upon the minutes.
Fahy Galligan, for the appellants.
William C. Kohlmetz, for the respondent.

The defendant John Fahy recovered a judgment against one Charlotte Mulherin. Execution was issued on the judgment to the sheriff of Monroe county, who, on the 29th of December, 1898, levied upon the articles enumerated in the complaint and which were in the possession of the judgment debtor. The plaintiff held a chattel mortgage upon the property and sued the sheriff in the Municipal Court of the city of Rochester in an action of replevin. An answer was interposed charging that the chattel mortgage was fraudulent and void and a trial was had on the merits. The complaint alleged the value of each specific article of the property taken and also its aggregate value, which was put in issue by a general denial. No proof of value was given on the trial and the judgment entered was not in the alternative form provided in section 1730 of the Code of Civil Procedure, but simply awarded the possession of the property to the plaintiff. The defendant appealed for this defect to the County Court from the Municipal Court, but the judgment was affirmed. In the meantime the property had been retaken by the sheriff and sold pursuant to the execution held by him. After an execution to obtain the property, which had been awarded to the plaintiff, had been issued and returned unsatisfied, this action was commenced to recover the value of such property and a recovery was had and the value was assessed at $600, but upon a motion for a new trial it was reduced to $405.20, which was the value alleged in the complaint in the first action. The defendants are the indemnitors of the original defendant, who was the sheriff, and were substituted by order of the court as defendants in his stead. The

p. 124
answers as well as the complaint set out the former action and the defendants plead it as an adjudication in bar of the present action.

The sole question is whether the value of the property having been within the compass of the preceding action, the plaintiff is barred from maintaining the present action by reason of the prior judgment:

It is well settled that an adjudication is conclusive against the maintenance of the same claim or demand in another action; not only as to what was litigated in the former action but also as to what was comprehended within its purview, even though not considered or passed upon. (Cromwell v. County of Sac, 94 U. S. 351 ; Felix v. Devlin, 50 App. Div. 331 ; Boyd v. Boyd, 53 id. 152, 160; Bracken v. Atlantic Trust Co., 36 id. 67; affd., 167 N. Y. 510 ; Reich v. Cochran, 151 id. 129.) The Code of Civil Procedure, in an action to recover a chattel, requires that the verdict or decision, except in certain cases, of which this is not one, “ fix the damages, if any, of the prevailing party” (§§ 1726, 1727), and makes the award therefor an essential part of the final judgment (§ 1730). The ascertainment of the value of these articles was a distinct feature of the replevin action, and, hence, a stronger case for the enunciation of the doctrine of res adgudicata than any of the cases cited.

The rule of estoppel applies as well in favor of the- defending indemnitors as of the original defendant for whom they are sponsors. (Code Civ. Proc. § 2931.)

The judgment should be reversed and the complaint dismissed, with costs to the appellants.

All concurred.

Judgment reversed, with costs, and complaint dismissed.

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