Cary Manufacturing Co. v. Malone — 115 N.Y.S. 632

Majority

p. 632

CARY MFG. CO. v. MALONE.

(Supreme Court, Appellate Division, Second Department.

March 12, 1909.)

Headnote

Replevin (§ 96^[1] )—Vebdict.

Where, in replevin, defendant claimed only a special interest in the property, a general verdict for defendant, which ignored an instruction that the jury must fix the value of the property, as required by Code Civ. Proc. § 1726, was irregular, and the refusal of plaintiffs motion for a new trial was error.

[Ed. Note.—For other cases, see Replevin, Cent. Dig. § 377; Dec. Dig. § 96.*]

Miller, J., dissenting.

Appeal from Trial Term, Kings County.

Action by the Cary Manufacturing Company against Bernard J. Malone. From a judgment for defendant, and from an order denying plaintiff’s motion for a new trial, it appeals. Reversed, and new trial granted.

Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.

A. G. N. Vermilya, for appellant.

S. Clinton Crane, for 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 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

p. 633

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. Section 1726 of the Code of Civil Procedure. 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 motior 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. All concur, except MILLER, J., who votes to reverse on the ground that the verdict is against the weight of evidence.