
    Stewart Dickson, Appellant, v. Roland M. Bickershoff, Respondent.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Replevin — Liability on undertaking — Extent of liability — Condition precedent to action on undertaking — Code Civ. Pro., § 1733.
    The return of an execution in defendant’s favor for the delivery of the possession of the chattel, pursuant to the judgment in his favor in a replevin suit, is a condition precedent to his maintenance of an action upon plaintiff’s undertaking.
    As sections 1730, 1731 and 1733 of the Code of Civil Procedure preclude the rendition of an affirmative judgment in favor of the defendant in replevin, for damages not connected with the chattels, the damages recoverable upon the plaintiff’s undertaking (Code Civ. Pro., § 1699) to answer for “ the payment to the defendant in any sum which the judgment awards to him against the plaintiff” are only such as the statute authorizes in a replevin suit; and damages for the amount of an affirmative judgment upon distinct counterclaims founded upon promissory notes are not within the scope of the undertaking.
    Appeal By the plaintiff from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of the defendant for the dismissal of the complaint, hut not upon the merits.
    John E. O’Brien, for appellant
    Herbert F. Andrews, for respondent
   Bischoff, J.

This plaintiff, defendant in an action for replevin, obtained a judgment in that action for the possession of the chattels and also for a sum of money upon distinct counterclaims founded upon certain promissory notes. Upon this judgment he caused execution to issue against the property of the then plaintiff in the form applicable to money judgments, omitting any reference to the chattels, and upon the return of this execution unsatisfied, he brought the present action to recover upon the undertaking in replevin.

The justice dismissed the complaint, but not upon the merits, for the plaintiff’s failure to cause the issuance of an execution in the form prescribed by section 1733 of the Code of Civil Procedure — a condition which the statute imposes to the maintenance of an action against the sureties.

Section 1733 of the Code of Civil Procedure provides as follows: “A plaintiff, who has recovered a. final judgment, cannot maintain an action against the sureties in an undertaking, given in behalf of the defendant to procure a return of the chattel * * * until after the return, wholly or partly unsatisfied or unexecuted, of an execution in his favor for the delivery of the possession of the chattel, or to satisfy a sum of money but of the property of the defendant, or for both purposes, as the case requires. A defendant, who has recovered a final judgment, cannot maintain an action against the sureties in the plaintiff’s undertaking, given to procure a replevin, until after a like return of a similar execution against the plaintiff.”

It is argued for the appellant that this section, especially when taken in connection with section 1731, regulating the contents of such an execution, relates merely to a case where there is some necessity for a manual delivery of the chattels, or where the nondelivery involves an alternative right to damages. In the present case it appears that no alternative damages were provided for; and it is said, although the record contains no reference to the fact, that this plaintiff had reclaimed the chattels under section 1704 of the Code; hence, that a direction to the sheriff to seize them would he an idle ceremony.

The result reached by the justice is apparently unassailable, although the question does not depend absolutely upon the form of the execution. The matter rests, basically, in the scope of the statutory undertaking given under section 1699 of the Code; the obligation to answer for “the payment to the defendant of any sum, which the judgment awards to him against the plaintiff ” being, in its meaning, related to the matter of damages arising from the right of possession of the chattel in question; and not being intended to include damages based upon some claim totally disconnected from the chattels. In Gallarati v. Orser, 27 N. Y. 324-327, it was held, under substantially similar provisions of the Code of Procedure (§ 211), that the damages there referred to must be such as may be awarded consistently with, and in connection with, a judgment for possession.. See also Cook v. Freudenthal, 80 N. Y. 202, 207. This interpretation of the intention and meaning of the statute, agreeably to which the undertaking was given, is rendered clear by the provisions of sections 1730, 1731 and 1733 of the Code; which sections preclude the rendition of affirmative judgment for the defendant in replevin for damages not connected with the chattel, or the withholding of its possession. A judgment in replevin may award to a defendant a sum of money only so far as he has established some special property in the chattel, or where it (the chattel) was distrained doing damage (Code, §§ 1720, 1730), or where it was delivered to the plaintiff and damages have accrued to the defendant through the detention. Code, §§ 1725, 1730.

The “ sums awarded by the judgment,” to which the statutory undertaking has reference, are damages such as the statute authorizes in a replevin suit; and the damages sought to be recovered in this case were, therefore, not within the scope of the undertaking.

The complaint was properly dismissed and the judgment appealed from is accordingly affirmed, with costs.

Scott and Fitzgebald, JJi, concur.

Judgment affirmed, with costs.  