
    The Rapid Safety Filter Co., Respondent, v. Sarah J. Wyckoff, Appellant.
    (City Court of New York, General Term,
    March, 1897.)
    Replevin — Evidence.
    In an action for replevin where the complaint claims damages for detention only,- evidence as to injury or damage to the article between the time of demand and the taking by the sheriff is inadmissible.
    . Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for a new trial.
    Myron H. Oppenheim, for respondent.
    A. G. N. Vermilya, for appellant.
   Conlan,. J.

This is an appeal from a judgment entered on a verdict of a jury and' from an order denying a motion for a new’ trial.

The action was one in replevin brought to recover the possession of a rapid safety filter, and for damages for its detention only.

Section 1722 of the Code provides that where plaintiff seeks to recover for injuries to a chattel in such an action, he must set forth the facts in his complaint and demand judgment for damages accordingly.

The court allowed the plaintiff to introduce evidence of injury or damage to the filter between the time of the demand and the taking by the sheriff. This was over the objection of the defendant and to which ruling the defendant duly excepted.

This was error. - The defendant was not called into court to meet such an issue, and the submission of such evidence to the jury was prejudicial’ to the defendant, for which the judgment must be reversed.

This view of the case obviates the necessity of an examination of the other questions presented.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

Fitzsimons, J., concurs.

Judgment reversed and new trial orderéd, with costs to appellant to abide event.  