
    Alice Wilsey, Resp’t, v. James Rooney, Sheriff, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Verdict—Motion to set aside.
    After the denial of a motion on the minutes for a new trial another judge has no power to set aside the verdict. To do so would practically be the hearing of an appeal from the denial.
    2. Replevin—Verdict.
    An action for the recovery of personal property in which no affidavit or requisition has been made and the facts required by §§ 1690, 1695, are not alleged, is not necessarily an action of replevin so as to require a verdict in the alternative, but a verdict for the value of the property may be rendered.
    Appeal from order denying motion to set aside a judgment entered upon a verdict.
    Action in replevin to recover possession of certain personal property belonging to plaintiff which it was alleged the defendant wrongfully took from her possession. The defendant by his answer admitted he was sheriff, denied the allegations of the complaint, and justified the taking under executions against the plaintiff’s husband.
    The jury returned a verdict for the plaintiff for $175 damages. A motion for a new trial was denied, and thereafter a motion was made before the county judge to set aside the judgment.
    
      Charles M. Barlow (Eugene Burlingame, of counsel), for app’lt; Galen R. Hitt, for resp’t.
   Learned, P. J.

This is an appeal from an order made by the county judge denying a motion made on affidavits to set aside a judgment upon a verdict in an action previously tried before another judge. The ground of the motion is not any irregularity; but is alleged error in the verdict. The question whether the verdict is erroneous must depend very largely upon what took place at the trial, upon what was charged by the court and what was excepted to, or not excepted to, by counsel. None of this is before us. The defendant had, at the close of the trial, made a motion for a new trial on the minutes, which had been denied. To have granted this present motion would have practically been the hearing of an appeal from that denial.

The defendant’s position is briefly that this was an action for a chattel; that in such an action the judgment must be for the value of the chattel if possession is not delivered. Code, § 1730.

The allegations in the complaint show equally a cause of action for conversion, and a cause of action to recover a chattel. The judgment demands possession. But where there is an answer the plaintiff may take any judgment consistent with the case made by him and within the issue. Code, § 1207. Therefore, there were allegations in the complaint on which plaintiff could have recovered damages.

This is specially provided in § 1718, which says that the plaintiff may recover the chattel or its value, though he has not required the sheriff to replevy it.

The previous section, 1717, requires the affidavit with the accompanying requisition to be made a part of the judgment-roll. It would seem then to be doubtful whether an action could be .said to be an action of replevin where no affidavit and requisition had been issued.

In this present case no affidavit and no requisition appear to Lave been made. And there is no proof of the facts required in §§ 1690 and 1695. They are not alleged in the complaint. We do not see, therefore, how the defendant can insist that this is “necessarily an action of replevin,” a phrase which, according to the compiler of the Code, is incorrect. Code, § 1689, note to the .article. And the compiler well says that the terms replevy and replevin should be confined to the proceedings whereby the officer takes possession of the property. If this is a correct statement, then it would seem that the actual instituting of these proceedings is necessary in order that the provisions in regard to replevin should apply. As the compiler remarks, “ It was entirely immaterial to the right of recovery whether any process to replevy the property had or had not been issued.”

It seems to us, therefore, if replevin proceedings had not been instituted, that there could be no objection to a recovery for the value of the property.

At any rate this order should be affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.  