Lewin v. Towbin — 65 N.Y.S. 228

Majority

p. 228

LEWIN et al. v. TOWBIN.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

Replevin—Form of Judgment.

When plaintiff sues for the recovery of a chattel, a judgment in his favor should be in the alternative, awarding to him the possession of the chattel, or the sum fixed as the value thereof, if possession cannot be procured.

Appeal from municipal court, borough of Manhattan, First district.

Action by Julius Lewin and another against Barnard Towbin for the recovery of a chattel, or, if possession cannot be procured, its value. From a judgment in favor of plaintiffs, the defendant appeals.

Modified and affirmed.

Argued before BEEKMAN, P. J., and GIEGERIOH and O’GORMAN, JJ.

Abraham B. Schleimer, for appellant.

Robert L. Turk, for respondents.

The only point raised' by the appellant requiring attention relates to the alleged irregularity in the form of the judgment rendered below. This being an action brought to recover a chattel, the judgment for the plaintiff should award to him the possession of the chattel, or the sum fixed as the value thereof, if possession cannot be procured. Langbein, Law & Frac. N. Y. Dist. Ct. 240. The judgment appealed from was not in the alternative, but it may be modified by providing that plaintiff recover possession of the chattels in suit, and, if delivery thereof cannot be made, then for the sum of $81, the value thereof, with $17.50 costs, and, as so modified, the judgment should be affirmed, without costs. Wolf v. Farley (Com. Pl.) 808, 16 N. Y. Supp. 168 .