
    Annie R. Conklin, Respondent, v. James McCauley, Appellant.
    
      Replevin — apiano used in the education of children is exempt from levy under execution — amendment of a complaint on a motion to dismiss—form of the complaint and of the judgment in replevin.
    
    A piano, used by a householder in connection with the education of her children, and found by a jury to be necessary for that purpose, is exempt from levy and sale under an execution issued against the householder.
    A complaint in an action of replevin brought by the householder against an officer who levied upon the piano, which alleges that at the time of the levy the plaintiff notified the defendant that the piano was a necessary article of household furniture, and that she claimed exemption by virtue of the provisions of the statute, and that subsequent to the taking she again notified the defendant of the claimed exemption and demanded possession, but which does not allege, as in strictness it should, that she notified the defendant that the piano was an article exempt by law from levy and sale under an execution, is sufficient to justify the court in denying a motion, made at the opening of the trial, to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and in refusing to exclude testimony offered for the purpose of showing that the piano was a necessary article of household furniture, and the court may, in its discretion, grant an amendment at any time before the trial is finished curing the defect.
    A verdict rendered in such an action for a specific sum, instead of for the possession of the property, and, incase delivery could not be made, for the value of the property, to be determined by the jury, as provided in section 1726 of the Code of Civil Procedure, is irregular, and requires the reversal of the judgment entered thereon.
    Appeal by the defendant, James McCauley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of December, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the Jth day of December, 1898, denying the ■defendant’s motion for a new trial made upon the minutes.
    
      Max D. Steuer, for the appellant.
    
      Henry C. Henderson, for the respondent.
   Hatch, J.:

The action is replevin, for the alleged wrongful taking of a piano, the property of the plaintiff, who was a householder, she claiming that the same was exempt by virtue of the provisions of section 1391 of the Code of Civil Procedure. The proof given upon the trial tended to establish, and the jury were authorized to find, that the article in question constituted necessary household furniture, as it appeared that the plaintiff made use of the same in connection with the education of her children, and that the piano was an article of necessity for that purpose. The court submitted such question to the jury as one of fact and their finding is conclusive thereon. The defendant, who is a marshal of the city of New York, justified the taking by virtue of an execution issued upon a judgment obtained against the plaintiff.

It is claimed, however, that the judgment is erroneous in other respects, and, first, for the reason that the complaint failed to state facts sufficient to constitute a cause of action. This question was raised by motion to dismiss, based upon such ground, at the opening of the trial, and also by objection to testimony offered for the purpose of proving the use to which the piano was put, and that it was a necessary article of household furniture, and, therefore, within the exemption created by the statute. The complaint did not in terms aver that the piano was necessary household furniture, nor that it was exempt by virtue of the provisions of the statute, but it did aver that, at the time the piano was taken from the possession of the plaintiff, she notified the defendant that the same was a necessary article of household furniture and that she claimed exemption by virtue of the provisions of the statute; and it further averred that, subsequent to the taking, the plaintiff notified the defendant of such claimed exemption and demanded possession, which was refused. In strictness the averments should have been of the fact that the article was an article exempt by law from levy and sale by virtue of an execution. But we think the reasonable and fair intendment of the allegation implies that the article was in fact exempt by law from levy and sale on execution by reason of the fact that its use was necessary in the household of the plaintiff. While the complaint is the subject of just criticism, yet we think it was sufficient to resist the motion and that it authorized the proof. Certainly the defendant could not be misled to his prejudice by failing to understand that such was the claim made by the complaint. If the complaint in this respect would not have resisted a demurrer, we should be authorized to hold the defect cured by the action had upon the trial. There is a difference where a party goes to trial upon a defective pleading and where he interposes a demurrer. While in the former case the question of insufficiency may be raised upon a motion to dismiss, yet it is within the power of the court to grant an amendment of the pleading, which may be done at any time before the trial is finished,- and when amended the defect is cured. In the latter tire demurring party stands upon liis technical legal rights, and the question is to be settled upon the averments of the complaint as made. (Loansbury v. Purdy, 18 N. Y. 515 ; Woolsey v. Pillage of Rondout, 4 Abb. Ct. App. Dec. 639; Buck v. Barker, 5 N. Y. St. Repr. 826.) If no amendment to a bad pleading is had, the denial of a motion to dismiss is error which would call for a reversal. (Tooker v. Arnoux, 76 N. Y. 397; Gill v. Ætna Live Stock Ins. Co., 82 Hun, 363.) But where the amendment is made, or the defect is otherwise waived or cured, the complaint will be held sufficient to support the recovery. (Cohu v. Husson, 113 N. Y. 662.)

The complaint was amended at the close of the trial, and with such amendment the cause of action as stated is clear; and we think that, within the somewhat liberal rule now applicable to pleadings, the court committed no error in refusing to dismiss the complaint, or in authorizing the amendment which was made. (Marie v. Garrison, 83 N. Y. 14; Sanders v. Soutter, 126 id. 193.)

The proof was not defective in failing to show that the plaintiff came within the provisions of the statute authorizing the exemption. It is true that there was no express proof of the value of the other articles of household furniture owned by the plaintiff, yet, some proof was given by the plaintiff upon that subject from which the jury were authorized to find that it was of very little value, while the claim of exemption was made at the time- of the taking. This was sufficient to satisfy the requirements of the law. (Russell v. Dean, 30 Hun, 242.) The statute is entitled to receive a liberal construction, and under such construction it is quite evident that the proof Avas sufficient. (Knapp v. O'Neill, 46 Hun, 317; Keiher v. Shipherd, 4 Civ. Proc. Rep. 274.)

We find no error was committed in the charge of the court, and the criticism thereon by the appellant is unfounded, as the court did not assume to rule or charge the jury, as a question of law, that the property was exempt. It simply stated conditions and left the jury to. determine the fact; so no error was committed in this regard.

We should have no difficulty in the affirmance of this judgment were it not for the fact that the verdict as rendered was irregular and was insufficient to support the judgment entered thereon. The action, as we have already observed, Avas replevin, and the A-erdict, if in favor of the plaintiff, should have required that the possession of the property should be awarded to her, together with a sum as damages for its detention, and in case delivery of the property could not be had its value Avas to be determined by the jury in lieu thereof. (Code Civ. Proc. § 1726 ; Hammond v. Morgan, 101 N. Y. 179.) In the present case the jury first returned a verdict “for the return of the piano and §40.” The court thereupon instructed the jury that no damages for detention Avere claimed, and that the $40 plaintiff could not get, and directed the jury to again retire and consider their verdict. This direction Avas proper. But the court, upon objection being made to again sending out the jury, charged that there was no proof in the case that the piano could he returned, or in whose possession it then was. To this instruction counsel for the defendant excepted. The jury retired, and returning again into court returned a verdict for the sum of $150, as would have been proper in form in an action for conversion, but which was entirely irregular, as not folloAving the provisions of law applicable to a verdict in replevin. The’verdict so rendered was irregular (Stauff v. Maher, 2 Daly, 142; Hay v. Muller, 7 Misc. Rep. 670), and for such irregularity this judgment must he reversed.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, Bartlett, J., in the result.

Judgment and order reversed and ubav trial granted, costs to abide the event.  