
    John E. Hoffman, App’lt, v. Henry Markham, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    1. Pleading — Replevin.
    The alleged title in the plaintiff and wrongful taking by the defendant are the requisite substantial facts, to be alleged in the complaint, in replevin, in order to justify the demand for a judgment for the recovery *of the possession, or, if delivery cannot be had, for the value and damages.
    2. Same — Exceptions.
    In replevin, it is unnecessary to allege that the action is not within the exceptions mentioned in section 1690 of the Code.
    Appeal from a judgment in favor of defendant.
    
      John K Robsen, for app’lt; George W. Atwell, Jr., for resp’t.
   Bradley, J.

— The questions presented on this review have relation only to the form of the action and of the recovery. The plaintiff, by his complaint, charged that he was the owner of the personal property in question of the value of $30; “ that the defendant seized and wrongfully took possession of said property, and refused to deliver it to the plaintiff upon his demand made therefo.r, and unjustly and wrongfully refused to deliver the same, to his damage of $25.” The plaintiff demanded judgment for the recovery of the possession, or, if delivery could not be had, for $30 as the value, and for $25 damages. The referee found that title to the property was in the plaintiff, that the defendant wrongfully took it from his possession, and that its value was $30; and, as conclusions of law, that the plaintiff was entitled to recover that sum. Exception was. taken to such conclusion, and to the refusal of the referee to find that the plaintiff was entitled to the possession of the property, and, if it could not be delivered to him, to the value of it. In the complaint were alleged the facts essential to replevin in the cepit, as it was formerly termed. The action in that form could be sustained "only when trespass would lie. Dunham v. Wyckoff, 3 Wend. 280; Barrett v. Warren, 3 Hill, 348. The same causes which then permitted recovery in an action of replevin will support “an action to recover a chattel.” The peculiarity of the action under the Bevised Statutes was that it was commenced by writ, while now the action for the like relief is commenced by summons as are other actions. The alleged title in the plaintiff and wrongful taking by the defendant were the requisite substantial facts to justify the demand for judgment with which the complaint was concluded. Code Civ. Proc. § 1720; Pattison v. Adams, 7 Hill, 126; Lalor, Supp. 426; Bond v. Mitchell, 3 Barb. 304; Vandenburgh v. Van Valkenburgh, 8 id. 217; Seifret v. Kraft, 13 Civ. Proc. R. 321. And as those facts were found by the referee, the plaintiff was entitled to a conclusion of law which would permit the recovery of judgment in the form demanded. It is not necessary, in such case, to allege in terms detention of the property by the defendant. That is only necessary in an action in the nature of replevin in the detinet. The action founded upon the wrongful taking can be maintained although'the defendant, before it commencement, may have parted with the possession of the property. Brockway v. Burnap, 16 Barb. 309; National Steamship Co. v. Sheahan, 122 N. Y. 465; 35 St. Rep. 35. The nature of the action is to be ascertained by reference to the complaint. In replevin it is unnecessary to there allege that the action is not within the exceptions mentioned in section 1690 of the Code. That is matter to appear in the affidavit made for the purpose of requisition. This is not essential to the action. § 1718. The plaintiff’s exceptions before mentioned were well taken with a view to the form of recovery. The importance of it in that respect relates only to the question of costs. Code Civ. Proc. § 3228.

The judgment should be reversed, and a new trial granted, costs to abide the event, unless the defendant stipulates to so modify the judgment as to make it conform to a judgment in favor of plaintiff as in an “ action to recover a chattel ” by striking out its provisions relating to costs and to recovery by the defendant, and inserting the recovery of $30 costs by the plaintiff; and in that event the judgment be so modified, and, as modified, affirmed.

All concur.  