
    Richard S. Peale and James A. Hill, Appellants, v. Charles R. Benjamin, Defendant, and George C. Bartlett, Respondent.
    
      Objection to the sufficiency of an answer in replevin—it cannot be first, taken on appeal.
    
    Where the plaintiffs in an action of replevin take the property from the possession of the defendant by virtue of the replevin process, the objection that the answer of the defendant is not broad enough to entitle him to recover the value of the property, if he be found to be the owner thereof, must be taken at the trial and is not available for the first time upon appeal.
    Appeal by the plaintiffs, Richard S. Peale and another, from a judgment of the Supreme Court in favor of the defendant George C. Bartlett, entered in the office of the clerk of the county of New York on the 28 th day of May, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of June, 1901 denying the plaintiffs’ motion for a new trial made upon the minutes.
    
      James O. lenney, for the appellants.
    
      Gilbert Say Mamies, for the respondent.
   Patterson, J.:

This appeal brings up nothing relating to the merits of the cause, the rulings of the court upon evidence, or instructions given to the jury, the only point presented by the appellant being Ihat the judgment providing for a recovery of money by the defendant Bartlett from the plaintiffs was unauthorized. It is a sufficient answer to this criticism to say that the judgment strictly follows the verdict of a jury, and that such verdict was rendered after instruction given by the court that such a verdict was permissible, which instruction was not excepted to nor challenged in any way at the trial. The action was in replevin, and, under a writ, property claimed by the plaintiffs was taken from the possession of the defendant Bartlett, who was found by the jury to be a bona fide purchaser of that property and entitled to its possession. The property had been delivered by the sheriff to the plaintiffs. The defendant Bartlett set up in his answer a counterclaim, which, however, was withdrawn at the trial. The counterclaim being eliminated, the cause proceeded upon the answer of the defendant Bartlett, which did not claim a redelivery of the property nor ask for its value, but merely contained a general demand that the complaint be dismissed. If the’ answer were insufficient to permit of the defendant Bartlett recovering the value of the merchandise, that subject should have been presented to the trial judge, and any advantage claimed by reason of the defect in the pleading should have been availed of at the trial. Here, the plaintiffs fully acquiesced in the submission to the jury of the right of the defendant Bartlett to recover from the plaintiffs the value of the property wrongfully taken by the plaintiffs on the replevin process, and it is now too late to raise any question concerning it.

The judgment and order should be affirmed with costs.

Van Brunt, P. J., O’Brien and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  