
    Thomas v. Coe.
    
      (Supreme Court, General Term, Third Department.
    
    February 7, 1889.)
    Bailment—Conversion—Action by Bailor—Former Recovery by Bailee.
    Where C., in replevin for certain goods, against one having a special property in them as bailee, obtained possession of them, a judgment for the value of such goods in favor of the bailee amounts to a recovery against C. for their conversion; and, though the judgment was not satisfied, it was a bar to a recovery by the owner of the goods against C. for such conversion.
    Appeal from circuit court, Columbia county.
    Action by John H. Thomas against Frank Coe. In January, 1884, the plaintiff entered into a written contract with one Tough, by which plaintiff agreed to deliver to Tough certain rakes and tedders, to be delivered on the cars at Springfield, Ohio, for which Tough was to give his notes whenever requested, the final and entire settlement to be made by September 1, 1884. Until payment the title to the goods was to remain in plaintiff, but Tough was to be liable to pay. In October, 1884, Tough gave plaintiff a check and notes in full for the contract price. In February, 1885, prior to the commencement of this action, the defendant brought replevin against Tough, and took certain goods, among which were the rakes and tedders, for the value of which this action is brought. They were taken and delivered to Coe. Tough pleaded ownership, and demanded judgment for return of the goods, or their value. On the trial a verdict was rendered for Tough for $1,729.10, the value of the goods, and judgment thereon was entered accordingly, January 80,1886. This fact was set up as a bar in the present action, brought against defendant for having wrongfully converted such goods to his own use. Judgment was given for plaintiff, and defendant appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Henry D. Hotchkiss, for appellant. J. C. Newkirk, for respondent.
   Learned, P. J.

If the plaintiff’s position is correct, that he continued to be the owner of the goods, then Tough was a bailee, and had a special property therein. As such he could maintain an action against a person who had wrongfully converted them. In such action he would recover the full value. Marsden v. Cornell, 62 N. Y. 215. The judgment in the action of replevin was practically a judgment for conversion. Tough was decided to be owner, and Coe to have wrongfully taken the property. For such wrongful taking Tough recovered against Coe the full value of the goods. The defendant now insists that such recovery is a bar to the recovery in the present action. The .plaintiff, on the contrary, says that only judgment and satisfaction are such bar. The opinion in the case above cited is unequivocal: “Either of them [meaning the general and the special owner] could maintain an action for the conversion of the chattel. Whichever of them first recovered, would recover the full value of it. A recovery by either barred a recovery by the other.” Page 223. Again: “If the special property man sues first, and recovers, a recovery by him is a bar to an action by the general owner. ” Page 222. How, it is quite possible that, in that case, there had been, not only recovery, but satisfaction. But it will be seen that the court distinguishes between the payment of the judgment, which gives title to the property, and the recovery of the judgment, which bars another recovery. This same doctrine is laid clown in Neff v. Thompson, 8 Barb. 213, and in Wheeler v. Lawson, 103 N. Y. 40, at page 47, 8 N. E. Rep. 360. So it was held in Green v. Clarke, 12 N. Y. 343, that if the general owner brought an action for conversion, and there was a judgment against him on the merits, this was a bar to an action by the bailee. It seems to us that these decisions have settled the question; and, as we are convinced that the recovery by Tough in the replevin action was practically a recovery for the conversion of the goods, we must hold that that judgment was a bar to this action. This view makes it unnecessary to consider the other question presented. Judgment reversed; new trial granted; costs to abide event.  