Pabst Brewing Co. v. Rapid Safety Filter Co.

Erlanger, J. This action was brought about May 20, 1904, to recover the possession of an automobile delivery wagon, or for the sum of $1,000 in case possession thereof could not be given to the plaintiff, and for the sum of $1,000 damages; the plaintiff alleging that the defendant the Rapid Safety Filter Company wrongfully gave possession of the said automobile to its codefendant the Mobile Storage and Repair Company for the purpose of being repaired. Plaintiff also alleged that the wagon was of the value of $1,000 but, by reason of the wrongful detention by the defendant, it depreciated in value to the extent of $900. ' The answer denied the material allegations of the complaint. After the commencement of the action plaintiff replevied the wagon which remained in its possession down to the time of the trial. The case was tried on the 1st of April, 1907; and the jury found a verdict in favor of the defendant the Rapid Safety Filter Company, awarding to it possession of the chattel, and assessed its value at $1,000. The judgment entered adjudged that the said defendant recover from the plaintiff the possession of the chattel described in the complaint, and that, in case possession of the said property is not delivered to the [447] said defendant, it recover from the plaintiff the sum of $1,000, the value of the said chattel as found by the jury. On the entry of the judgment, plaintiff paid the costs and served upon the defendant the Bapid Safety Filter Company a notice to the effect, “ Please let me know where you desire this chattel delivered. In the event of your failure to advise us * * * we will store the same at your expense and risk and subject to your order.” Ho execution having been issued, plaintiff placed the wagon in a storage warehouse subject to the order of the said defendant and, as it claims, delivered the storage receipt to defendant’s attorney. The defendant refusing to give a certificate of the satisfaction of the judgment, a motion was made to compel its execution in order that the judgment might he satisfied of record. In opposition to the motion the filter company contended that, on Hay 7, 1907, it inspected the wagon and found that there were missing one lamp, one complete set of batteries, •four battery trays, two lamp brackets, one gong, one brake shoe, one electric controller, one controller lever, one starting switch and considerable portions of the wiring which were present when the machine was replevied; and that the paint and varnish were scratched, marred and defaced, and the vehicle in other respects injured so that its value was not greater than $100. The court below granted the motion, and from that order this appeal was taken. Whatever conflict there may be in the affidavits concerning the alleged depreciation in value of the chattel in suit intermediate its replevin by the plaintiff and the trial, it is clear that the chattel was in the same condition at the time of its tender to the defendant the Bapid Safety Filter Company, pursuant to the commands of the judgment, as it was at„the time of the trial. In an action of replevin the verdict must fix the damages, if any, of the prevailing party; and, where it awards to the prevailing party a chattel which has been replevied and afterward delivered by the sheriff to the unsuccessful party, the verdict must also (except in cases not material to this question) fix the value of the chattel at the time of the trial. Code Civ. Pro., § 1726. The jury hav [448] ing fixed the value of the chattel at $1,000, it is conclusively presumed that such was its value at the time of the trial. Allen v. Fox, 51 N. Y. 562, 564. We are, therefore, concluded by the judgment as to the value of the chattel at that time. TJnder the judgment the plaintiff had the alternative of either paying such value or surrendering the chattel. When the unsuccessful party in an action of replevin surrenders the' chattel described in the judgment, he fully complies therewith. If there has been a de23reciation in value while the chattel remained in the possession or under the control of the unsuccessful party, the prevailing party may recover damages for such injury or depreciation. Code Oiv. Pro., § 1722. If the property has depreciated “ intermediate the wrongful taking and the trial, still the prevailing party is obliged to take it if he can obtain it, and he is indemnified for the depreciation by the damages assessed to him.” Allen v. Fox, supra, 565. Damages for detention include loss arising from depreciation in value during the period of its detention. Brewster v. Sillman, 38 N. Y. 423. Damages to the chattel while in the possession of the officer acting under the replevin writ must be recovered in the action of replevin; and no action'can be brought therefor subsequently, as the matter has become res adjudicata. Ritchie v. Talcott, 10 Misc. Rep. 412—414. The case of Kingsley v. Sauer, 17 Misc. Rep. 544, cited by the ap2iellant, does not ajiply. In that case plaintiff recovered judgment for 7 tons and 180 cubic feet of hay; the defendant used a portion of the hay and* simply tendered the balance which the plaintiff refused to accept. If this action had been brought for the recovery of two automobile wagons and the defendant had tendered one only, that case would have been more in point. It is not claimed by the appellant in its opposing affidavits that, at the time the action was brought and the chattel replevied, it exceeded in value the sum of $1,000. The jury having found that the value of the chattel at the time of the trial was $1,000, the verdict carries with it the finding that there was no depreciation in value intermediate the replevin, of the chattel and the trial; and, the chattel being; in the same condition at the time it was [449] tendered to the prevailing party as at the time of trial, plaintiff complied with the directions of the judgment, and* was entitled to the order which was made. The order should he affirmed, with ten dollars costs and disbursements. Gildeesleeve, J., concurs. Leventeitt, J., talcing no part. Order affirmed, with ten dollars and disbursements.