Segelke v. Finan — 15 N.Y. St. Rep. 808

Majority

p. 808

Henry Segelke, App’lt, v. Robert Finan, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

1. Verdict—Court may make verdict conform to finding of jury.

Where the findings of a jury are free from ambiguity and their intentions clear, the court has a right to make the verdict conform therewith.

2. Same—When it is error to annul.

Upon the trial of an action for the recovery of chattels the jury found that the chattels in question belonged to the plaintiff and that he was entitled to the possession thereof. By direction of the trial judge six cents damages were awarded the plaintiff for the detention of the chattels. Held. that this did not prejudice any right of the defendant, and that it was error for an appelate tribunal to expunge the verdict from the record and grant a new trial.

Charles Reinhardt, for app’lt; Daniel Brown, for resp’t.

—This is an appeal from an order expunging from the record a verdict and granting a new trial.

This was an action for the recovery of chattels (replevin) originally commenced in justice’s court, and taken to the county court by appeal. The action was brought to trial in the county court and was submitted to the jury upon the evidence of the plaintiff.

The jury agreed upon a verdict except the words “ six cents damages for the detention thereof ” which the judge directed to be entered in the verdict, to-wit: “ That the plaintiff is the owner and entitled to the possession of the property; that the value thereof is $200.

We think it was error to annul the verdict. The plaintiff upon the evidence was clearly entitled to have the court direct the whole verdict. The evidence is all one way and clearly proved that the property belonged to the plaintiff and that he was entitled to the possession thereof. But even assuming that it was a proper case to submit to the jury it was competent for the court to insert in the verdict nominal damages.

The rule is well settled that where the findings of a jury are free from ambiguity and their intentions clear the court has a right to make the verdict conform therewith. Rockfeller v. Donnelly, 8 Cow., 652 ; Burhans v. Tibbits, 7 How., Pr., 21 ; Fitzhugh, v. Wiman, 9 N. Y., 559 ; Beekman v. Bemus, 7 Cow., 29 ; Van Schoening v. Buchanan, 14 Abb., 185 , 188.

It is to be observed that in this case the jury upon being polled expressed satisfaction with the verdict except they stated they had found no damages. The fact that the court directed damages to the amount of six cents to be inserted, in the verdict did not prejudice any right of the defendant.

Section 1726 of the. Code, states that the verdict must fix the damages, if any, but in this case no specific damages were proved, and the verdict was good as rendered in the first instance.

The cases of Wood v. Orser, and Weeks v. Hart, relied, on by respondent, are not in point.

The order of the county judge must be reversed, and plaintiff have judgment on the verdict.

Barnard, P. J., and Dykman, J., concur.