
    Walter K. Freeman, Respondent, v. The United States Fidelity and Guaranty Co., Appellant.
    (Supreme Court, Appellate Term,
    March, 1904.)
    Replevin — Action against the surety, after the discontinuance of the action, for the non-return of the chattels — Mot maintainable where the defendant in the replevin action made no demand for their return — Allegation that the plaintiff in the replevin action owned the chattels and was entitled to possession is a partial and not a complete defense.
    A roofing company brought replevin against Walter K. Freeman for chattels who, after they had been taken from him on the requisition, interposed an answer. After issue joined and before judgment the roofing company discontinued the action on payment of costs and thereafter Freeman commenced this action against the surety on the undertaking, given by the roofing company in order to replevy, to recover damages for the non-return to him of the chattels.
    Held, that an affirmative defense alleging that Freeman, in his answer in the replevin action, denied possession of the chattels as well as refusal to deliver them on demand and did not ask judgment for their return and had never demanded a return from the roofing company or the surety, was not demurrable for insufficiency.
    That a further separate defense alleging that the plaintiff had never demanded the return or judgment for the return of the chattels, and that he never served any notice, in the replevin action, in which he made a demand for a judgment for the return of the chattels, or their value, was not demurrable for insufficiency.
    That a defendant in a replevin suit who wishes to have the replevied chattels returned to him without giving a counter-undertaking and reclaiming the chattels as provided in Code Civ. Pro. § 1704 must either demand their return in his answer or by notice under Code Civ. Pro., § 1725.
    That as the action was predicated upon a breach of a condition of the'undertaking providing for a return in case of a discontinuance, allegations contained in the answer that at the time of and since the replevy the roofing company had and had had title as well as the right to immediate possession of the chattels and that at and since the said time Freeman had and had had no property or ownership in them, did not constitute a defense in bar of the action but only a partial defense in mitigation of damages which, if proved, would prevent Freeman from recovering of the surety more than nominal damages.
    That as these allegations had been pleaded as a defense in bar and not as a partial defense, as required by Code Civ. Pro. § 508, such defense was demurrable.
    Appeal by the defendant from a judgment of the City Court of the city of Rew York sustaining the plaintiff’s demurrer to three separate defenses in the defendant’s answer.
    Riles & Johnson (William W. Riles and John J. Guaneen, of counsel), for appellant.
    Richols, Joseph & Cahn (Geo. Edwin Joseph, of counsel), for respondent.
   Freedman, P. J.

This action was brought against the defendant as surety on a replevin bond given by the Commonwealth Roofing Co., in an action of replevin brought by it against the present plaintiff, who, after the property had been taken under the requisition in replevin, interposed an answer. More than a month after issue had been joined, the court, on application of the Commonwealth Roofing Co., granted an order discontinuing the action on payment of costs. He then commenced this action against the present defendant as surety on the replevin bond on account of the nonreturn of the replevied chattels.

The defendant, by its answer, sets forth as a first affirmative defense that in the action of replevin brought by the Commonwealth Roofing Company against this plaintiff, in which action the bond described in paragraph three of the complaint was given, the plaintiff herein by his answer on oath denied that he had possession of the chattels in said action sought to be replevied and denied that he had refused to deliver said chattels on demand of said Commonwealth Roofing Company, and in said answer this plaintiff did not ask judgment for the return of the said chattels, though said chattels had been previously thereto replevied by the said Commonwealth Roofing Company, and the plaintiff herein has never demanded the return of said chattels from' said Commonwealth Roofing Company or from this defendant.”

To this defense the plaintiff demurred on the ground that it is insufficient in law on the face thereof and the demurrer was sustained. The plaintiff seeks to sustain this ruling by citing Rogers v. United States Fidelity & Guarantee Co., 84 N. Y. Supp. 203; Pettit v. Allen, 64 App. Div. 579, and a number of others which have been examined and found so inapplicable that a reference to them would serve no useful purpose. The two cases to which I have referred, it is true, hold that the liability of the surety upon an undertaking in replevin may be enforced notwithstanding the discontinuance of the action, but it is equally true, as was held in Bown v. Weppner, 62 Hun, 579, that no liability on the part of the surety for the nonreturn of the chattels replevied exists unless such return was demanded by the defendant in the action. In Rogers v. United States Fidelity & Guarantee Co., supra, the defendants in their answer demanded the return of the chattels. In Pettit v. Allen, supra, the point, if it existed, was not raised, nor was it discussed. If not made by answer, the demand must be made as pointed out in section 1725 of the Code.

Even if a replevin ease is tried and decided on the merits, a judgment in favor of the defendant does not necessarily have the effect of adjudicating the title in him and awarding to him the return of the property, for he may succeed simply upon the plea that he did not take or detain the property. So a judgment in defendant’s favor for a return of the property does not necessarily determine that he owns it, for he may have a special property in it, the plaintiff being the general owner, and in such a case the alternative judgment would not be for the value of the property but simply for the value of his interest. Yates v. Fassett, 5 Den. 21; Brady v. Beadleston, 62 Hun, 548; Angel v. Hollister, 38 N. Y. 378; Weaver v. Darby, 42 Barb. 411; Rhoads v. Woods, 41 id. 471; 24 Am. & Eng. Encyc. of Law (2d ed.), 537, and cases there cited.

In the case at bar the discontinuance of the replevin suit can have no greater effect. Ho title was adjudicated upon and no judgment for a return given and the defendant had pleaded that he did not take or detain the property and he had not in any manner demanded a return of the property. While, therefore, the property having been found in defendant’s possession and taken from him, he was presumptively the owner and would not be required in the first instance to show title, such presumption may be rebutted by proof. This is precisely what the present defendant by its answer proposes to do. The doctrine of Yates v. Fassett, 5 Den. 21, that where one who was sued in replevin in the detinet and pleaded nondetinet and had a verdict in his favor, with judgment for costs but not for a return, afterward brought trover for the property against the former plaintiff, such action was maintainable, though he might have so pleaded in the first suit as to have entitled himself to a return or to the value of the property in damages, which doctrine was followed in Angel v. Hollister, 38 N. Y. 378, and in Brady v. Beadleston, 62 Hun, 548, has no application to the present controversy. For the reasons stated, and especially in view of the decision of Bown v. Weppner, 62 Hun, 579, the demurrer of the plaintiff to the first affirmative defense should have been overruled.

The second affirmative defense differs from the first in that it does not set forth this plaintiff’s denial that he was in possession of the chattels at the time they were replevied and that it does not contain the allegation that plaintiff denied that he refused to deliver the chattels to the Commonwealth Roofing Company. It sets forth, however, that the plaintiff in this action never in any manner demanded the return, or judgment for the return, of the chattels alleged in the complaint to have been replevied by the Commonwealth Roofing Company, and also that he, in the action brought by said company, never served any notice in which he made a demand for a judgment for a return of the said chattels or their value. That the defendant in a replevin suit, if he wishes to have the replevied chattels returned to him without having given a counter-undertaking and reclaimed the chattels as provided by section 1704 of the Code of Civil Procedure, must either demand the return in his answer, as decided in Bown v. Weppner, 62 Hun, 579, or by notice under section 1725 of the Code is specifically required by the Code (§§ 1725-1730). See also McCobb v. Christiansen, 27 Misc. Rep. 825; affd., 28 id. 119. For the reasons above assigned for the sufficiency of the first affirmative defense the second defense must also be sustained.

The third defense is to the effect that the Commonwealth Roofing Company at the time of the replevy and ever since has been the owner of the chattels and entitled to the immediate possession thereof, and that the plaintiff at the time of the replevy had no property or ownership in them and never since has had. This defense, when considered as a separate and distinct defense as it was pleaded, is not a defense in bar of the action, but is available only, if properly pleaded, as a partial defense in mitigation of damages. The claim of the plaintiff rests upon that part of the undertaking which provided for a return of the property if the action should abate or be discontinued, and the action having been discontinued and no return made, the failure to make a return was a breach of the undertaking, but proof that the title to the property and the right to its immediate possession were after all in the defendant in that action would prevent a recovery by the present plaintiff for more than nominal damages. 24 Am. & Eng. Encyc. of Law (2d ed.), 538, and cases there cited; Suth. Dam., § 507; Ernst Bros. v. Hogue, 86 Ala. 502; Tuck v. Moses, 58 Maine, 462. But in order to be available for such purpose the third defense should not have been pleaded as a defense in bar, but should have been pleaded as a partial defense as required by section 508 of the Code. Not having been so pleaded the demurrer to it on the technical ground of its insufficiency in law as a defense in bar must be sustained.

The judgment appealed from should be reversed with costs as to the first and second defense and as to them judgment should be ordered for the defendant upon the demurrer with costs with leave to plaintiff to withdraw the demurrer upon payment of such costs. As to the third defense the judgment should be affirmed with costs with leave to defendant, if so advised, upon payment of such costs to amend the answer by setting forth the said defense as a partial defense. The said costs as to the third defense should be set off against the costs awarded as to the first and second defense.

Scott and Blaitohaed, JJ., concur.

Judgment reversed, with costs as to first and second defense and as to them, judgment ordered for defendant upon demurrer with costs, with leave to withdraw demurrer upon payment of costs. As to third defense judgment affirmed with costs, with leave to defendant upon payment of costs to amend answer. Costs as to third defense should be set off against costs awarded as to first and second defense.  