Johnstone v. Weibel

115 N.Y.S. 255 | N.Y. App. Div. | 1909

Rich, J.:

This action was commenced by the service of a summons stating that if the' defendant failed' .to appear jiidgmen't would he-taken against him for twenty-six dollars and fifty cents and costs, of the action. The pleadings were oral, the plaintiff’s, attorney stating; that his complaint was for “ claim and delivery and damages.” It appears from the 'bill of' particulars that his cause of [action is based upon the ownership of a ¡safe, fin the possession of the defendant, which he demands, with damages sustained in consequence of defendant’s refusal to deliver it to him. The municipal justice has found for the plaintiff, and directed the entry of j'udgment in his favor, adj'udging that he recover the possession of the safe with six dollars and fifty cents damages for its detention and costs. From the j'udgment accordingly entered this appeal is taken.

Defendant contends that the trial court had no jurisdiction because there was no affidavit or complaint accompanying the summons, and that the latter contains no reference to the nature of the action. The plaintiff did not seek to replevin the safe; he had the right to waive this privilege, and await possession obtained under his judgment. The court acquired jurisdiction by the service of the summons, and where a defendant has thus been brought into court, the plaintiff is at liberty to set up any cause of action that he chooses. (Sharp v. Clapp, 15 App. Div. 445.) The judgment did not fix the value of the property, and was not in the alternative, which the appellant argues presents reversible error. In this he is mistaken. In Hammond v. Morgan (101 N. Y. 179) it was held that a judgment for plaintiff in an action of replevin may be entered, although the jury has not assessed any damages or found the value of the property.

The judgment of the Municipal Court must be affirmed, with costs.

Woodward, Jenks, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.