Majority
p. 327McCARTHY v. JAMES ROWLAND & CO. (Supreme Court, Appellate Term. November 30, 1903.) Argued before FREEDMAN, P. J., and BISCHOFF and BEAN-CHARD, JJ.
Headnote
1. Appeal—Modification of Judgment—Conversion—Damages for Detention—Unauthorized Recovery.Where, in trover for certain chattels, the court awards possession to plaintiff and also $50 damages, though recovery for a detention is not warranted by the pleadings, the court on appeal cannot modify the judgment by eliminating the provision for possession, and affirm the pecuniary recovery as representing the value of the goods, since, in view of its cumulative instead of alternative character, the latter recovery cannot be taken to represent such value; but the judgment must be reversed.
Appeal from Municipal Court, Borough of Manhattan, First District.
Action for conversion by Daniel J. McCarthy against James Rowland & Co. From a judgment for plaintiff, defendant appeals.
Reversed.
George C. De Eacy, for appellant.
John F. Foley, for respondent.
In an action for conversion of two books the justice has awarded judgment to the plaintiff for the possession of the chattels, together with $50 damages. There having been no amendment of the proceedings to cover such a result, it is impossible to sustain the judgment. Possession as well as damages (not in the alternative) having been awarded, the damages must be deemed to relate to detention, not to the measure of value, and, eliminating the provision for possession, we cannot properly affirm the judgment, nor do we understand that the respondent desires an affirmance with this modification.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.