
    CAIN v. CAIN.
    
      N. Y. Supreme Court, Special Term, First District;
    
    
      July, 1892.
    1. Judgments; substance and effect; replevin.] A provision in a judgment in replevin allowing the recovery of the value of the chattel in case possession of the same cannot be obtained, is for plaintiff’s benefit, and may be waived by him.
    2. The same.) The mere entry by plaintiff of a judgment in replevin for the possession of the chattel does not vest the title in the defendant as in the case of judgment for plaintiff in an action of trover; a defendant in replevin does not obtain title unless the judgment awarding possession to plaintiff also contains a provision for the recovery of the value of the chattel in case possession can not be obtained, and payment is made of the amount adjudged.
    3. Equity.] Executors may maintain an action in equity to compel the delivery to them of an article bequeathed as a specific legacy, which is of a special value to the legatee as a memento of testator, and of which the executors had failed to obtain pos- • session in an action of replevin by reason of defendant’s avoidance of the execution issued upon a judgment therein for the recovery of the article.
    Trial without a jury of an action to obtain a mandatory injunction to compel defendant to surrender to plaintiffs a diamond ring.
    The action is brought by Michael Cain and Patrick Rooney, as executors of Peter Cain, deceased, against Sarah Cain and Rosa Flood.
    The following are the material facts stated in the complaint: The will of Peter Cain gave and bequeathed to the defendant, Rosa Flood, the possession of a diamond ring until a child of the testator by the name of Julia Cain should become of the age of twenty-one years, at which time it was provided that the ring should belong to the child. The defendant, Sarah Cain, who was the wife of testator, took the ring from the hand of the testator shortly after his death and refused to surrender it. The executors commenced an action of replevin against her, and recovered judgment. An execution was issued upon the judgment, but the sheriff failed to obtain the ring, and it remained in the possession of Sarah Cain. The ring was claimed to be of special value to the legatee, Rosa Flood, as a memento of affection, and she refused to accept a sum of money in lieu of the ring. Plaintiffs demanded judgment that Sarah Cain be directed to deliver the ring to them or the sheriff.
    The answer of the defendant, Sarah Cain, among other defenses set up: That in the action of replevin plaintiffs had demanded an alternative judgment for the delivery of the ring or its value; and that, relying on such demand for judgment, she had defended the action solely for the purpose of reducing the value which plaintiffs claimed for the ring; that the jury fixed the value of the ring at $500, and before the commencement of this action the defendant tendered that sum.
    The judgment in the replevin suit only adjudged that plaintiffs should recover the ring, and contained no alternative provision for the recovery of its value in case possession could not be obtained.
    
      Estes, Barnard & Tiffany, for plaintiffs.
    
      James O' Neill, for defendant, Sarah Cain.
    
      Hamilton B. Tompkins, for defendant, Rosa Flood.
   Ingraham, J.

Plaintiffs’ testator was the owner of a diamond ring, described in the complaint, and, upon his death, the title to that ring vested in the plaintiffs as his executors. The act of the defendant in refusing to deliver the ring to plaintiffs was without right, and plaintiffs were entitled to take such proceedings as were proper to recover possession of the ring. To enforce that right, they commenced the action of replevin, which is a mere possessory action, claiming title to and a right of possession of the property sought to be recovered, and the judgment in such action, adjudging that plaintiffs were entitled to the possession of the property, was an adjudication to that effect.

The provision of law allowing a plaintiff in an action to recover the possession of a chattel which allows a money judgment for the value of the chattel in case the possession of the same should not be obtained upon the execution issued upon such judgment, is for the benefit of the plaintiff, and can be waived by him ; and the mere entry of a judgment adjudging that the plaintiff is entitled to the possession of the said chattel, and directing execution to enforce such right of possession, does not of itself vest the title in the defendant as a judgment in an action for trover, unless there is also contained in the judgment a provision for the recovery of the value of the chattel in case possession is not obtained, and the payment of the amount of such judgment. The ring in question was the property of the testator. It was his express intention that the sáme should be delivered to the defendant, Rosa. Flood, and there is no reason why this intention should not be carried into effect or that the court should not. enforce it.

The case comes within the rule stated in Hammond v.. Morgan (101 N. Y. 179), and plaintiff is therefore entitled to judgment, with costs against the defendant, Sarah Cain.  