Carswell v. Alden — 6 N.Y. St. Rep. 297

Majority

p. 297

Cornelia C. Carswell, Resp’t, v. Ellen S. Alden, App’lt.

(New York Common Pleas, General Term,

Filed March 7, 1887.)

Headnote

1. Practice—Action for chattels—What answer mat contain in justices court—Code Crv. Pro., § 1733. 1

Section 1733, Code Civ. Pro., is not applicable to courts of the justices of of the peace or to district court of the city of New York.

p. 298

2. Same—Evidence—Judgment in another action.

The judgment in another action brought by a third party against the plaintiff herein, was not evidence in this action of any matter that might have been decided in that other action.

Appeal from a judgment of the district court of the city of New York. The action was brought to recover the possession of certain chattels or their value, and judgment was given in favor of the plaintiff for damages and costs.

The defendant set up in her answer that the property was in the possession of and held by one William H. Alden, Jr., who was entitled to the possession by virtue of a special property or lien under the statute for board due him and also by virtue of an agreement.

On the trial the defendant offered in evidence, for the purpose of showing that the plaintiff was indebted to the said Alden for board, a judgment obtained in an action by him against plaintiff for board and lodging, which was admitted in evidence.

Charles H. Lovett, for app’lt; C.H. Machín, for resp’t.

Section 1,723, upon which the defendant relies, is not made applicable to courts of justices of the peace, or to district courts of the city of New York. The defendant was not, therefore, in a position to avail herself of the sale of the lien, which it is said that William H. Alden, Junior, claimed upon the chattels that are the subject of the controversy. Stowell v. Otis, 71 N. Y., 368 .

The judgment in the action brought by William H. Alden, Jr., against the plaintiff was not evidence in this action of any matter that might have been decided in that action. Though the evidence would have warranted a judgment against the plaintiff, upon the ground that the goods were not detained from her by the defendant, there is nevertheless sufficient evidence to support the judgment in the plaintiff’s favor.

Judgment affirmed._