10 Daly 171 | New York Court of Common Pleas | 1881
The defendants were not entitled to show that at the time of the commencement of the suit the property replevied was in the possession of Goodman, and that they executed the undertaking on his behalf only. The latter part of the offer was, in effect, to contradict the recitals in the undertaking, which they were estopped from doing (Decker v. Judson, 16 N. Y. 439); and the fact that Goodman had the property in his possession when the suit was brought, was immaterial. When the undertaking was entered into by the defendants the property was in the possession of the sheriff. The undertaking recites that the sheriff had taken it as empowered by the proceedings instituted; that the plaintiff claimed that it should be delivered to him; that the defendants were desirous that it should be delivered to them, and that in consideration of the delivery of it to them, the defendants in this action bound themselves for the delivery of it to plaintiff, if a delivery of it to him should be adjudged, and for the payment to him of such sum as might, for any cause, be recovered against the defendants in the action.
The fact that no cause of action was established against the defendant Goodman, and that the complaint was dismissed as to him, does not discharge the defendants from their obliga
In consequence of the undertaking, the property was returned to all of the defendants, Jacoby, Batt and Goodman. This is inferable from the language of the instrument, the recitals in effect being that they, Jacoby, Batt and Goodman, were desirous of having it returned to them ; and that in consideration of the return of it to them, the defendants in this action became bound, &c.
The complaint avers that upon the execution of the undertaking, the property was thereupon returned to the defendants in the action. The answer avers that it was returned to Goodman. The necessary effect of the execution of the undertaking was the delivery of it to the defendants in this action, and if the defendants in this action were entitled to show that it was returned to Goodman, which, in connection with other facts, I think might have been shown, they made no offer to show it. They became bound for the delivery of the property by each and all of the defendants if a delivery of it to the plaintiff was adjudged, and it does not discharge their liability that the defendant Goodman was released from any obligation to deliver it by a judgment in his favor. They still remained bound for the delivery of it by the other defendants. All that occurred was a dismissal of the complaint as to Goodman, the only effect of which was to entitle him to costs. It in no way affected the plaintiff’s right to the property. Goodman claimed in his answer that the property be returned to him ; but the court did not award a delivery of it to him, but on the contrary, a delivery by the other two defendants to the plaintiff. As respects him, therefore, it must be regarded simply as a judgment that he did not wrongfully detain it, and such a judgment
Where there are several defendants the court may adjudge the return of it to one of them and refuse it to others, or may award it to all of them, or part to one and part to another, or to the plaintiff, as the rights of the parties shall appear (Wells on Replevin, §§ 478, 481, 482); or judgment may be given for a defendant on the ground that he did not take or wrongfully withhold, where he came into possession of it for a lawful purpose or in good faith by delivery from the wrongdoer, in which case no return of the property is awarded to him (Ely v. Ehle, 3 N. Y. 509, 510); which would seem to have been the case here, from Goodman’s answer that the property came into his possession as an assignee for the benefit of creditors.
The action of replevin is found upon a tort. It is brought by a party entitled to property against those in possession of it who have wrongfully taken or wrongfully withhold it, or who wrongfully conceal or put it out of their possession to defeat the suit. Where there are several defendants sued as wrongdoers, each may set up a separate defense; each may claim exclusive title to the property, or set up any matter in defense without reference to the pleading or defense of the other; and judgment may be given in favor of one and against the others, or judgment may be for both parties (Wells on Replevin, §§ 16, 21). Thus a defendant may succeed and not be entitled to a return, for a return of the property is ordered only when it appears just.
If the rule were, as the appellant contends, that the sureties are not liable unless judgment is recovered against all the defendants and they are all required by it to make delivery to the plaintiff, then the death of one of the defendants would discharge the sureties altogether, for the cause of action in replevin being regarded as in the nature of a tort, the death of one of the defendants abates the action as to him, though not as to the rest (Lahey v. Brady, 1 Daly, 443 ; Hopkins v. Adams, 5 Abb. Pr. 351; Webbers v. Underhill, 19 Wend.
The sheriff was bound to deliver the property to the defendants upon their giving an undertaking in the form prescribed by the statute (Code of 1870, § 211), which was the undertaking here given, and which, under the appellant’s construction, would be discharged or of no avail to the plaintiff if one of the defendants should die pending the suit. The plaintiff could get his judgment for the return of the property against the other defendants, but without the security for his indemnity that the statute meant he should have, if the property, instead of being delivered to him in the action upon the undertaking given by him to the sheriff, is delivered by the sheriff to the defendants upon the undertaking which gives them the right to have it delivered to them.
What the sureties undertook was to be bound for the delivery of the property if delivery of it should be adjudged to the plaintiff, and the payment of such sum as might be awarded against the defendants. The argument is that the sureties agreed to be bound if all the defendants failed to deliver it. The answer is that one of the defendants was relieved from delivering it by the judgment of the court. In the language of the undertaking, a delivery of it by him was not adjudged, but it was adjudged that it should be delivered to the plaintiff by the other two defendants ; and it is for their failure to deliver or pay the sum recovered, if the property was not delivered, that the defendants are answerable.
I think it very probable that a state of facts might have been shown by proving what occurred in the trial of the action against Jacoby, Batt and Goodman—that is, the evidence that was given, upon which the judgment in the action was founded —which would have shown that no recovery could be had against the sureties upon the undertaking on the ground that no liability on their part could arise from the want of a proper judgment and proper proceedings under it. But this was for the defendants to show. All that we have before us is the record in the action against Jacoby, Batt and Goodman, which the plaintiff gave in evidence; and all that that proves is that the property was delivered to the defendants in that suit upon the undertaking given by the defendants in this ; that the suit was dismissed as to Goodman, which relieved him from the obligation of delivering the property, and that a delivery of it by the remaining defendants to the plaintiff was adjudged. The defendants saw fit to rest their case upon the evidence given by the plaintiff instead of putting in evidence exactly and fully what occurred in the action against Jacoby, Batt and Goodman. All questions determined in the replevin suit are res adjudicates, and cannot be inquired into in a suit upon the bond; but matters not settled or disposed of in that suit may be (Wells on Replevin, §§ 447, 448, and cases there cited).
J. F. Daly, J., concurred.
Van Hoesen, J., concurred in the result.
Judgment affirmed.