
    COURT OF APPEALS.
    Hammond agt. Morgan.
    
      Replevin — Oode of Oivil Procedure, sections 1730, 1781, 3228 — Requisites of a judgment zn replevin — Oode of Oivil Procedure, sections 968, 969, 971, 972, 1225 — Practice in action for specific performance.
    
    Where plaintiff brought an action asking for the return of, and damages for the retention of, certain valuable papers, and the case was tried as one of replevin, and the jury rendered a verdict for plaintiff, awarding him the title, and thereafter plaintiff obtained an ex parte order for judgment, and that defendant deliver the papers, and that costs he taxed, .and on the same day plaintiff entered judgment for costs and afterwards the judge struck the costs from the judgment on the ground that it was an action in replevin. On appeal from an order made on a motion of defendant to set aside the order and judgment:
    
      jHeld, that the proceedings were irregular, either as an action of replevin or in equity, to compel specific performance; that the judgment, and order for judgment, should he set aside, and the case stand as it was after the verdict was rendered; and if the court desire to hear it as an equitable action, it might do so.
    
      Decided January, 1886.
    
      A. J. Vanderpoel, for appellant, James Morgan.
    
      Marshall P. ■ Stafford, for respondent, Andrew H. Hammond.
   Earl, J.

The plaintiff in his complaint alleges that on the 13th day of May, 1882, he delivered to the defendant a certain written assignment, dated in the month of April of that year, and executed by the defendant and Jane Matthews, as executors of Mason J. Matthews, deceased, whereby they conveyed, to him all the interest of the deceased in certain letters patent and licenses under an assignment of letters patent, and also all the interest in any claim which the defendant and Jane Matthews, either by themselves or as executors, or jointly with the defendant and John Nichol, had or might have against the Mechanical Organette Company of New York, or against any other parties, relating to or growing out of the manufacture and sale of mechanical musical instruments; that the assignment was delivered to the defendant, in trust, to be returned to the plaintiff, but that the defendant failed and refused to return the same, although due demand therefor was made; and, further, that in or about the month of March, 1882, a paper in the nature of a release was executed by the firm of Needham & Son to the plaintiff, whereby the plaintiff was wholly released from certain obligations, dues and contracts to and with the firm, of which release the defendant obtained possession, and still retained possession, without right thereto, and in violation of plaintiff’s right to the possession thereof, although demand for delivery to the plaintiff had been made of defendant and refused; that the assignment and release were of great value to the plaintiff, and that the retention thereof by defendant had greatly damaged him; and judgment was prayed that the defendant be ordered to return the assignment and release and deliver them to the plaintiff, and that the plaintiff have such damage for the retention thereof as a reference for that purpose might show that the plaintiff had suffered, besides costs of the action.

The answer denied all the allegations of the complaint, except that the papers mentioned therein had been demanded by the plaintiff. The action was subsequently by the plaintiff put upon the special term calendar for trial, and was stricken therefrom on motion of defendant’s attorney, on the ground that it was at law and not triable there. The plaintiff then noticed the action for trial at a jury term of the court, and" it was brought to trial, and appears to have been tried as an action of replevin. The jury rendered a verdict for the plaintiff, and found the title of the property in the plaintiff, and that he should have the return thereof.” Four days after the rendition of the verdict the plaintiff applied to the judge who presided at the trial, ex parte, without any notice whatever to the defendant, and obtained from him an order which directed that the plaintiff have judgment against the defendant, ordering him to deliver forthwith to the plaintiff the two instruments mentioned in the complaint, and particularly described in the order, and that plaintiff have judgment against the defendant for costs, to be taxed, and that he have execution therefor. Thereupon, on the same day, without any notice to the defendant, the plaintiff entered judgment in pursuance of that order, wherein it was adjudged ¡and decreed that the defendant deliver forthwith to the plaintiff the two instruments mentioned in the complaint, and that the plaintiff have judgment against the defendant for costs of the action, which had been adjusted at $210.92, and that he have execution therefor. A motion was subsequently made by the defendant, among other things, to strike the costs from the judgment, before the same judge who tried the action, and he, seeming yét to treat the action as one in replevin, struck the costs from the judgment on the ground that the jury had not found any value to the property, nor any damages for the detention thereof, and that, therefore, there was no basis for allowance of costs, under subdivision 2 of section S228 of the Code of Civil Procedure. The defendant subsequently, by permission of the court, made a motion to set aside the order and judgment as irregular and unauthorized, which motion was denied at the special term. He then appealed to the general term, and from affirmance there to this court.

From the form of the complaint it is not certain whether the action is at law to recover the possession of the written instruments mentioned in the complaint, or in equity to compel the defendant to specifically perform, by delivering the instruments to the plaintiff. It does not seem to be disputed that, if the action was one in replevin, the judgment is irregular, because it is not such as is prescribed in the Code. A judgment in replevin should award the property to the plaintiff, together with damages for its detention; and in case delivery of the property cannot be made, its value, as determined by the jury, in lieu thereof; and the judgment must be enforced by execution, and not by punishment for contempt (Code, secs. 1730, 1731). A judgment in replevin may undoubtedly be entered, although the jury has not assessed any damages or found the value of the property. In that case the judgment would simply award the property to the plaintiff, to be enforced by execution; and, if the return of the property could not be thus obtained, the judgment would be unavailing.

But here the property was not replevied, and it is not now claimed by the counsel for the respondent that the action is to be treated as one at law, for the recovery of chattels. If, on the other hand, this is to be treated as an action in equity, to compel specific performance on the part of the defendant, as now claimed on behalf of the plaintiff, then the judgment was wholly unauthorized, and the practice quite irregular. In that event, the case was properly noticed at the special term, and should there have been tried before the judge, without a jury,, unless, at his instance, or upon the motion of one of the parties,, some or all the issues were ordered to be tried before a jury, and for that purpose the questions to be answered by them should have been distinctly framed. In such case the issues are sent to a jury for the aid and information of the court. If the facts thus submitted to, and answered by, the jury, together with facts admitted by the pleadings, cover the whole case, so that no further facts need be proved for the information of the court, motion may at once be made for judgment. Upon such motion both parties have a right to be heard, and the court may ■order judgment upon the case as then made, or it may set aside the findings of the jury, or use some of them, and it may allow either party to give further evidence. So, if the motion for judgment be not at once made, it must be brought on upon motion, so that both parties may be heard. But if the findings of the jury, together with the facts admitted in the pleadings, do not cover the whole case, and other issues remain to be tried, or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to'a hearing before the ■court, when the court may or may not adopt the findings of the jury, and other facts may be proved; and in such case the court 'must make findings of fact and law, to which exceptions may be taken by either party desiring to appeal. Such is the general scheme of practice prescribed by the Code, and in this case there was no semblance of compliance with it (Code, secs. 968, 969, 971, 972, 1225).

Here there was no order sending issues for trial to the jury, and no questions or issues were framed; no proof was subsequently taken before the court, and no notice was given to defendant’s attorney of the application for the order and judgment. But if we assume that the verdict of the jury may stand, as no objection was made to the mode of trial, or to the verdict, then what did it determine? Simply that the plaintiff owned the instruments, and that the defendant wrongfully detained them. These findings, so far as they went, were ample for an action of replevin; but were they, without more, sufficient for the equitable relief awarded ? The ordinary remedy of a party against one who has wrongfully converted and wrongfully detains his chattels or choses in action is by an action of trover or replevin; but in peculiar cases, where from the nature of the case or of the property detained neither of •such actions will give proper or sufficient relief, an equitable action may be instituted for the specific delivery of the property, and judgment in such an action may be enforced by punishment for contempt. But, before the equitable relief can be granted, tbe facts conferring equity jurisdiction should be •alleged, and must be proved (Pom. Eg. Jur., secs. 177, 1402).

Here, after tbe rendition of tbe verdict, tbe court could bave 'taken further proof, if necessary, and could thus, after bearing ' tbe parties, bave given judgment based upon its findings of fact :and law, including tbe findings of tbe jury. We think, therefore, that tbe order for judgment, and tbe judgment, should be. tset aside, and that tbe case will stand where it stood after tbe ’verdict; and, if tbe court shall then treat this as an equitable action, it may bear tbe parties; and, if further proof be offered or needed, can take it, and then render tbe proper judgment

We do not determine whether this should be treated as an ••action at law or in equity. We leave such determination to ■.the court below. All we now determine is that tbe order and . judgment should not bave been made without notice to and bearing of tbe defendant, and probably without further proof and findings of fact and law by tbe judge. Tbe defendant did not bave a remedy for tbe error or irregularity be complains of •by an appeal from the order or judgment., His only remedy ■was by motion.

Tbe orders of tbe general and special terms should be reversed, and tbe order and judgment should be vacated, and tbe • case remitted to tbe special term of tbe court below for further :action therein; and tbe defendant should bave costs of tbe appeal to tbe general term and to this court, and ten dollars coste ■.of motion.

All concur, except Miller, J., absent  