Retter v. Webber

217 A.D. 193 | N.Y. App. Div. | 1926

Per Curiam.

The action is in replevin for possession of a team of horses, and for damages for withholding the same. The judgment entered on a jury verdict is for a sum of money only consisting of the value of the horses and the damages for withholding. The form of the judgment is improper. It should have been for the possession of the horses together with the plaintiff’s damages for detention,, and for the value of the horses as fixed by the jury to -be paid by the defendant if possession of the horses is not delivered to the plaintiff. (Civ. Prac. Act, § 1124.) Considering the way the case was left to the jury it is clear that the jury verdict in favor of the plaintiff fixing the value of the property, and awarding damages to the plaintiff for the detention of the horses by the defendant impliedly awarded the possession of the horses to the plaintiff and contained every element necessary for a proper judgment in accordance with the statute. This court, therefore, has power to correct the judgment. (Fitzhugh v. Wiman, 9 N. Y. 559; First Nat. Bank of Cincinnati v. Kelly, 57 id. 34, 41; Hitchcock v. Wimpleberg, 103 App. Div. 53, 57; Scherl v. Flam, 136 id. 753.)

The judgment should be modified by striking out the provision that the plaintiff recover of the defendant the sum of $968, and by inserting in place thereof provisions to the effect that the .possession of the horses be awarded to the plaintiff, and that if the possession of the horses be not delivered to the plaintiff, the plaintiff recover of the defendant the sum of $500, the value thereof, and that in addition the plaintiff recover of the defendant the sum of $4C8 damages for withholding, and .as so modified affirmed, without costs.

Present — Htxbbs, P. J., Clark, Davis, Sears and Crouch, JJ. All concur.

Judgment modified in accordance with the opinion and as so modified affirmed, without costs of this appeal to either party.