
    Jacob Mertens, as Surviving Partner, Resp’t v. John C. Fitzwaler, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 20, 1889.)
    
    Costs—When defendant not entitled to, under Code, § 3234.
    The complaint in an action to recover possession of goods sold at various times to defendant’s assignor contained but a single count. After judgment for defendant a new trial was granted unless defendant stipulated to amend the judgment so as to award to plaintiff the goods last sold, and to defendant the remainder, which was done. Held, that the plaintiff’s right of action was an entire one, and that the deiendant was not entitled to costs under section 3334 of the Code.
    
      Calvin J. Eusen, for app’lt; Charles E. Ide, for resp’t.
   Martin, J.

On March 3d, April 12, May 15th, August 21st, September 15th, and October 21st and 22, in the year 1886, and on March 8, 1887, the firm of which the plaintiff is the surviving member, sold to David G-. Gray, the defendant’s assignor, bills of goods consisting of various articles of ready-made clothing. By this action the plaintiff sought to recover possession of the goods so sold from the defendant, who claimed title and the right of possession under and by virtue of a general assignment made to Mm by said Gray for the benefit of creditors.

The complaint in this action contained but a single count in which it was alleged that the plaintiff was the owner of such goods, that he had demanded them of the defendant, ■and that the defendant had refused to deliver them to the plaintiff. The plaintiff demanded judgment for a return of said goods, or their value if a return could not be had, and for damages for their detention. The defendant, by his answer,, admitted that the plaintiff demanded the goods, hut alleged that he owned them as such assignee, and demanded a judgment that the property be returned, and that he have damages for the detention thereof by the plaintiff.

On the trial the plaintiff sought to establish title to the goods on the ground that they were fraudulently purchased of the firm, of which the plaintiff is the surviving member, by the defendant’s assignor. The defendant had a verdict. Subsequently a motion for a new trial was made, which resulted in an order granting a new trial on the payment of costs, unless the defendant should stipulate to amend the verdict rendered by awarding to the plaintiff the goods purchased of his firm March, 1887, fixing the value thereof at $170, and assessing the plaintiff’s damages for the detention of the same at six cents, and by awarding to the defendant the remainder of the goods, fixing their value at $175.13, and assessing defendant’s damages for the ■detention thereof by the plaintiff at $16.11. The stipulation provided for by this order was given. The defendant applied to the clerk of Onondaga county to adjust his costs in the action, wMch he declined to do. The defendant then moved at special term for an order requiring the clerk to ' adjust such costs, which was denied, and from that order this appeal was taken.

In determining the question presented by this appeal, the verdict as amended must be treated as though it had been rendered by the jury on the trial. It must-, therefore, be regarded as a verdict for the plaintiff for the goods sold to Gray on the 8th day of March, 1887, and a verdict for the -defendant for the goods sold at the various times mentioned ■during the year 1886. The plaintiff sought to avoid the various sales made by his firm, and to recover the property thus sold, on the ground Unit each of such sales was induced by the fraud of the defendant’s assignor; and thus the question was presented as to each of said sales, whether it was induced by such fraud. The defendant claims that, under the provisions of the Code of Civil Procedure, he was entitled to costs against the plaintiff. Section 1728 provides: “Where the action is brought to recover two or more chattels, the verdict, report or decision-may award to one party one or more distinct chattels, which can be identified, and set apart from the others, and the residue to the other party; and, if necessary, the complaint must be amended so as to conform thereto. The-final judgment rendered thereupon, must award to each party the same relief, with respect to the finding in his favor, as if separate judgments were rendered; except that, where each party is entitled to an absolute award or a suns of money, against the other the smaller sum must be deducted from the greater, and the balance only must be awarded.”

Section 3234 declares, “In an action specified in section-3228 of this act, wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action -was the same upon each issue, in which case the plaintiff only is entitled to costs.”

Among the actions specified in section 3228 is an action, to recover a chattel. In this case there was no certificate-that the substantial cause of action was the same upon each issue.

The defendant contends that the plaintiff’s claim for the property sold upon each of the occasions mentioned constituted a distinct and separate cause of action within the intent and meaning of section 3234, and that he was entitled to recover costs against the plaintiff, although the plaintiff failed to set forth separately in his complaint these several causes of action, as he sought to recover upon them all.

Where, as in this case, it is claimed that the sale of goods was induced by fraud on the part of the vendee, and they have passed -into the hands of an assignee for the benefit of the creditors of the vendee, and the assignee had no-knowledge of the alleged fraud when he took possession under the assignment, and no proceeding had been taken by the vendor to rescind the sale prior to the assignment, a demand from the assignee is necessary before an action for the possession of the goods can be maintained. The assignee lawfully acquired the title and possession of the goods, subject to the right of the plaintiff to reclaim them upon rescinding the contract between him and the defendant’s assignor. Goodwin v. Wertheimer, 99 N. Y., 149.

Until a demand was made, the plaintiff had no right of action against the defendant. When the goods in question were demanded by the plaintiff, and the defendant refused. "to deliver them up, the plaintiff had a cause of action against the defendant for all the goods demanded, if they were fraudulently obtained by the vendee. As between the -parties, but one right was asserted by the plaintiff, and that was a right to all the goods taken. The plaintiff’s asserted right of action was an entire one. It constituted but one cause of action. Hence, the case is not within the provisions of section 3234.

Moreover, the court of appeals, in The Newell Universal Mill Company v. Muxlow (24 N. Y. State Rep., 545), held "that section 1728 has no bearing upon the question of costs in such an action, and that where the complaint does not set forth separately two or more causes of action, and the plaintiff recovers a portion of the property and the defend-ant the remainder, the defendant is not entitled to costs under section 3234 of the Code of Civil Procedure. The decision in that case must, we think, be regarded as decisive of the question under consideration. It follows, therefore, that the order appealed from should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concur.  