Cramer v. Brownell

Headnote

Cramer v. Brownell, 166 App. Div. 456 , affirmed.

Appeal from a judgment, entered March 29, 1915, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a new trial and

directed reinstatement of the said verdict. The action was brought by plaintiff in replevin to recover the possession of a certain horse, the property of plaintiff, or its value, with damages for its detention. The answer, besides a general denial, set up, as a separate defense, another action pending in trover against another party for the same horse, and defendant claimed that by the commencement of • such action the plaintiff had elected to surrender any cause of action she may have had against this defendant. The action came on for trial and resulted in a verdict for the plaintiff for the recovery of the horse with damages for its detention. Thereupon the defendant moved to set aside the verdict as contrary to law, which was granted on the ground above stated. Upon appeal to the Appellate Division the order was reversed and the verdict reinstated. It appeared on the trial that the horse belonged to the plaintiff, but had been seized by a deputy sheriff, as the property of one Snyder, under an execution against the latter, and advertised and sold (against plaintiff’s protest) and had been transferred by the purchaser to the defendant; that immediately after the sale the plaintiff commenced an action against the deputy sheriff for conversion of the horse, which action is still pending, undetermined; and that soon after the commencement of such action for conversion, plaintiff brought this action of replevin against this defendant.