Witty v. . Campbell

The only question to be determined in this action is, whether the pendency of the action of replevin between these same parties was a defence to this action, and I am clearly of the opinion that it was not. In that action the plaintiff claimed to own the property at the time it was attached, and the cause of action was the wrongful taking and detention of his property by the defendant. In that action he could recover the property, and damages for its detention, or the value of the property and damages. So far as the defendant had sold the property, and put it out of his power to deliver it to the plaintiff, he was not bound by what defendant received on the sale, but he was entitled to recover its value. That was an action ex delicto; this is an action ex contractu, to recover the proceeds of a portion of the same property. It is based upon the duty which the defendant owed Kingsley to pay the money to him. The cause of action *Page 412 accrued primarily to Kingsley, and the plaintiff must recover on the strength of Kingsley's title assigned to him, and he can recover no more than the defendant realized on the sale of the property, without reference to its value. The two causes of action require different proof. In the one, he must prove that Kingsley owned the property at the time the sheriff took it; in the other, he must show that he owned it at that time. A judgment against him in the one, would not be a bar to a recovery in the other, but would tend to show that he was entitled to recover in the other; but he cannot recover in both. If he should recover in the first, that would show that the property was his, and he could not recover in the second; if he should recover in the second suit, that would show that the property belonged to Kingsley when it was taken, and he could not recover in the other. It is thus plain that the causes of action are not identical, and that the doctrine of pleading the pendency of a former suit in abatement has no application to the case. InMorris v. Rexford (18 N.Y., 552), Judge COMSTOCK held the same, in a case where plaintiff commenced suits of replevin, upon the theory that there was no sale of the property, and afterward commenced another suit for the purchase price of the same property, upon the theory that there was a sale. I do not assent to the claim of the respondent's counsel, that the defendant was precluded from denying Kingsley's title to the property, because he had attached it as his. This would doubtless have been so, if the attachment had been discharged, and the undertaking given by Kingsley, under sections 240 and 241 of the Code. But here the attachment, as I understand it, was vacated and set aside upon affidavits, as improperly granted. In such a case, the sheriff is not bound to restore the property to the person from whom he attached it, unless such person has some title or interest in it. Here, the return of the property to Kingsley would have been no defence to the action of replevin, brought by the plaintiff. If Kingsley had sued for this money, the defendant could have defended the action by showing that the property belonged *Page 413 to the plaintiff, and that Kingsley had no interest in it; and he could have defended this action, based upon Kingsley's title, by the same proof. The plaintiff having recovered in this action, if he can recover at all in the replevin suit, can only recover, if the action is properly defended, so much of the property as was not converted into money by the sheriff, and thus recovered in this action. I, therefore, reach the conclusion that the judgment should be affirmed with costs.