Majority
p. 170Jacob Ackerman et al., App’lts, v. James O’Gorman, Impleaded, etc., Resp’t. (Supreme Court, General Term, Fourth Department, Filed July 20, 1889.)
Headnote
1. Costs—Replevin—Code, § 3334.Where Ihe complaint in an action to recover possession of personal property contains but one count, and defendant recovers as to some of the property, he is not entitled to costs under section 3334 of the Code. He is only entitled to costs where the complaint sets forth separately two or more causes of action.
3. Same—Pleading.
A complaint which alleges in a single count the wrongful taking and detention of certain specified goods and a refusal to deliver them on demand, does not set forth two or more causes of action, although such goods were sold to defendant’s assignor at different times and delivered at different places.
Appeal from an order of the Oswego special term, March, 1889, allowing the defendant, O’Gorman, a bill of costs.
This was an action in replevin to recover the possession of a quantity of boots, shoes and rubbers, held by the der fendant, O’Gorman, as assignee, under the general assign
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ment of Dennis Murphy, who obtained possession of the goods by virtue of purchases, which the plaintiffs claimed were fraudulent, so that no title passed. Murphy was engaged in business at the city of Oswego and also at Oswego Falls.
A part of the goods replevied were found at the Oswego store and a part at the Oswego Falls store.
The complaint contained but one count, and alleged that the defendant, O’Gorman, on or about the 14th of January, 1888, at the city of Oswego, wrongfully took and wrongfully detains from plaintiffs certain goods described in a schedule annexed; that the plaintiffs are the owners and entitled to the possession; that the goods are of the value of $236.45; that on the 14th of January, 1888, demand was made of O’Gorman, and he refused to deliver. ■
The answer contains, first, a general denial except the demand. It then alleges that Murphy was the owner of the property, and on the 13th of January, 1888, executed and delivered to O’Gorman a general assignment for the benefit of creditors, under which O’Gorman took possession and holds and owns, as assignee, all the property named in the complaint that had ever been purchased by Murphy.
The defendant seems to have served on plaintiffs a bill of particulars or notice, specifying certain goods as taken from store at Oswego and certain others as taken from store at Oswego Falls, and stating that, of the goods replevied and taken by the plaintiffs, those were the ones to which the assignee claimed title, and to none others.
Upon the trial, a verdict was ordered for the plaintiffs for the possession of the goods taken from the Oswego Falls store, and fixing their value at $158.94, with six cents damages for detention, and for the defendant for the possession of the remaining goods fixing their value at $77.51, with six cents damages for detention. On the 7th of February, 1889, judgment was entered in accordance with the verdict, adjudging that plaintiffs have and retain possession of the goods awarded to them, and that defendant recover of plaintiffs, the possession of the goods awarded to him, the judgment specifically describing the goods awarded to each. Costs were taxed by the clerk in favor of the plaintiffs, but he refused to tax the defendant’s costs. Then the motion was made which resulted in the order appealed from.
It appears from the record, that the goods awarded to ' O’Gorman by the verdict, were sold to Murphy at a different time, anÜ delivered to him at a different place than the goods which the plaintiffs’ recovered.
Smith, Kellogg & Wells, for app’lts; John B. Higgins, for resp’t.
Our decision in this case must be controlled by the decision of the court of appeals in The Newell Uni
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versal Mill Co. v. Muxlow (24 N. Y. State Rep., 545). In that case at general term ( 51 Hun, 453 ; 20 N. Y. State Rep., 914), it was held that, in an action of replevin, when the plaintiff recovered a portion of the chattels sued for, and the defendant the rest, the defendant was entitled to costs, following the case of Ackerman v. De Lude ( 36 Hun, 44 ). The court of appeals reversed the general term, holding that the right to costs in such cases is regulated exclusively by the provisions of section 3234 of the Code, which explicitly declares that the right of the defendant to costs depends upon the condition that the plaintiff has, by his complaint, separately set forth two or more causes of action upon which issues of fact have been joined; that the rules on this subject pertaining to the former action of replevin do not apply, and that section 1728 of the Code has no bearing on the subject. The remedy of the defendant, it is said, is through an offer of judgment. The court adopted the views expressed by the supreme court in the case of Kilburn v. Lowe ( 37 Hun, 237 ).
In the present case, the complaint did not set forth two or more causes of action. In form it was quite similar to the complaint in the Newell Co. Case.
It follows, that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion of the defendant O’Gorman, for costs, denied.
Hardin, P. J., and Martin, J., concur.