Hampton & B. R. & Lumber Co. v. Sizer — 71 N.Y.S. 990

Majority

p. 990

(35 Misc. Rep. 391.)

HAMPTON & B. R. & LUMBER CO. v. SIZER et al.

(City Court of New York, General Term.

June, 1901.)

Headnote

Replevin—Judgment—Expenses.

In replevin by a corporation to recover certain of its personal- property and damages for its unlawful detention, counsel fees and traveling expenses of the president of the corporation made necessary by the litigation are not recoverable as damages.

Appeal from trial term.

Action by the Hampton & Branchville Railroad & Lumber Company against Robert R. Sizer and the American Surety Company. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed conditionally.

See 64 N. Y. Supp. 553 .

Argued before FITZSIMONS, C. J., and O’DWYER and HAS-CALL, J J.

p. 991

Eustace Conway, for appellant Sizer.

Henry C. Willcox, for appellant American Surety Co.

Willis B. Dowd, for respondent.

The record in this case shows that the plaintiff was the owner of the lumber in question, and entitled to its possession, as against the defendants, in whose possession it was at the time of the commencement of the action. The action is to recover possession of personal property, and for damages for its unlawful detention, and we are satisfied from the evidence in the case that the plaintiff is entitled to that relief. On the trial, however, against the objection of the defendants, the plaintiff was permitted to prove as damages expenses incurred as railroad fares by its president on several trips made to Hew York, occasioned by reason of the pendency of this litigation, and amounting to the sum of $240, together with an expense incurred for counsel fees herein amounting to $304; and the jury, by their verdict, have specifically allowed the sum of $304 as damages for lawyer’s fees, and $240 as damages for railroad fares. We are of opinion that the plaintiff is not entitled in this action to either one of those items, and that the judgment must be modified accordingly. Under the complaint in this action the plaintiff is entitled to recover possession of the property sued for, or, if possession thereof cannot be had, then its value at the time of the trial, together with damages for its unlawful detention, and no more; and, in the absence of other evidence of such damages, legal interest upon the value will be the amount thereof. It follows that the judgment must be reversed, and a new trial ordered, with costs to appellants, to abide the event, unless within 10 days the plain tiff stipulates to reduce the judgment entered herein by deducting therefrom the sum of $304 allowed as damages for lawyer’s fees, and $240 allowed as damages for railroad fares, with the extra allowance thereon of 5 per cent., in which event the judgment and order appealed from are affirmed, without costs.

Judgment reversed, and new trial ordered, with costs to appellants to abide event, unless within 10 days plaintiff stipulates to reduce the judgment by deducting therefrom $304 allowed as damages for lawyer’s fees, and $240 allowed as damages for railroad fares, with extra allowance of 5 per cent., in which event judgment and order affirmed, with costs.