
    Harris Barnard, Appellant, v. Thomas F. Devine, Respondent. Actions Nos. 2 and 3.
    (Supreme Court, Appellate Term,
    February, 1901.)
    Tort — Cannot be severed and requires only one satisfaction — Jurisdiction of the Municipal Court of the city of Mew York in replevin — Damages in replevin.
    Where a tort is committed by the taking at one time of several chattels there is but one cause of action, it cannot be severed and there can be' but one recovery and satisfaction The jurisdiction of the Municipal Court of the city of New York in an action of replevin is limited and determined by the value of the chattels and there is no limit to the amount of the damages, these being incidental to the right of possession.
    
      Appeals by the plaintiff from judgments of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of the defendant. Actions of replevin.
    Goldschmidt & Falk, for appellant.
    Israel Ludlow, for respondent.
   O’Gorman, J.

The defendant, a livery-stable keeper, had in Ms custody, on livery and storage, certain horses, wagons and like chattels of the aggregate value of $1,500, the possession of wMch was demanded by the plaintiff, who claimed to be the owner thereof under two chattel mortgages. The property had been previously placed with the defendant by a second mortgagee, who took it under foreclosure of his mortgage. Upon the defendant’s refusal to surrender possession of the chattels to the plaintiff, the latter forthwith began three replevin actions in the Municipal Court, claiming in each action a portion of the chattels alleged to be wrongfully detained by the defendant. Action No. 1 proceeded to trial on the merits, and resulted in a judgment for the plaintiff, which was duly satisfied. In actions Nos. 2 and 3, the defendant was permitted to amend his answer, without objection, by pleading action No. 1 and the judgment therein as a bar, and the parties thereupon stipulated “ that the affidavits in the three actions are precisely the same; that the parties are identical, and that the evidence to support the three actions is the same; that the defense is the same and the issues in the actions are precisely alike, except that the affidavits refer to different chattels of different values. That the property was taken by the defendant from the plaintiff at the same time and by the same demand.” All the chattels were replevied by the plaintiff on April 25, 1900. Action No. 1 was tried on June 18, 1900; actions Nos. 2 and 3 came to trial on October 5, 1900. It was further stipulated that, in the event of a recovery by the defendant, the value of the chattels in each case should be assessed at the amount fixed by the plaintiff in his affidavit, and that damages be allowed for the detention at the rate of one dollar per day for each Horse, that being regarded as the reasonable value of the hire of the animal. The defendant was awarded judgment in each case; in action No. 2 the value of the chattels was assessed at $485, and the damages fixed at $500; in action Eo. 3, the value was assessed at $480, and the damages at $500. Erom these judgments the' plaintiff appeals.

It is a well-established doctrine that a single cause of action, whether founded upon a contract or a tort, cannot be severed or divided in order that separate actions may be instituted to recover different items of damage, and, where a tort is committed by the wrongful taking at one time of several chattels, ,it gives but one cause of action, and the plaintiff will not be permitted to split it, and bring separate suits for separate articles. Farrington v. Payne, 15 Johns. 432; Secor v. Sturgis, 16 N. Y. 548; Draper v. Stouvenel, 38 id. 223; Reilly v. Sicilian Asphalt Paving Co., 31 App. Div. 302; 1 Am. & Eng. Pl. & Pr. 159, 161. There was, therefore, no possible escape from the conclusion, reached by the trial justice, that the judgment in the first action was a bar to the prosecution of the other suits. The prior action, and the judgment therein, exhausted plaintiff’s remedies against this defendant, and the satisfaction of that judgment operated as a complete extinguishment of all claims growing out of the original transaction, and not specifically embraced in the first action. The plaintiff’s cause of action arose on April 25, 1900, on which day he made a single demand upon the defendant for all of the chattels in question, and the defendants refusal constituted a single wrong, affording the plaintiff a single cause of action. As said in Perry v. Dickerson, 85 N. Y. 347, “ It is sufficient to bring the second action within the estoppel of the former judgment, that the cause of action in the former suit was the same, and that the damages or right claimed in the second" suit, were items or parts of the same single cause of action, upon which the first action was founded. The law, to prevent vexatious or oppressive litigation, forbids the splitting up of one single or entire cause of action into parts, and the bringing of separate actions fdr each. * * * There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be.”

The plaintiff also assails the judgments upon the ground that they exceed the jurisdiction of the Municipal Court. While, in actions on ordinary money demands, $500 is the limit of recovery in that court, yet, under subdivision 7 of section 1364 of the charter (Laws of 1897, chap. 378), the only limitation upon the jurisdiction of the Municipal Court, in relation to replevin suits, is that the value of the chattel shall not exceed $500. The sec tion provides that the Municipal Court has jurisdiction of “ An action to recover one or more chattels with or without damages for the taking, withholding or detention thereof where the value of the chattel * * , * does not exceed five hundred dollars.”

It will be noted that in such an action no limitation is placed upon the amount of the damages. The recovery of the chattel is the main purpose of the action; the damages are but an incident tó the right of possession, and, so far as the jurisdiction of the court is concerned, they are not circumscribed by any limitation as to amount. The statute makes the value of the property, and not the amount of damages, the determinative factor upon the question of jurisdiction.

With reference to plaintiff’s contention that the defendant should, in no event, recover damages, and that his recovery should be confined to the possession of the chattels or their value, it may be sufficient to observe that section 1726 of the Oode, made applicable to the Municipal Court by section 1323, Consolidation Act (Laws of 1882, chap. 410), provides that final judgment for a defendant should also award him his damages. Moreover, the stipulation of the plaintiff not only recognized defendant’s right to damages, if awarded possession of the chattels, but also expressly fixed the measure thereof. Under this stipulation, the trial justice might well have awarded damages in excess of $500 in each case. We have examined the other points presented, but find none tenable. On the trial but a single question of law was involved. It was properly decided, and necessarily led to an adjudication against the plaintiff.

Attobews, P. J., and Blaxchabd, J., concur.

Judgments affirmed, with costs.  