
    John Young, Respondent, v. James C. Willet, Sheriff of the City and County of New York, Appellant.
    1. In an action to recover the possession of specific personal property, or the value thereof in case a return cannot be had, and for damages, the plaintiff may recover damages arising from the depreciation of the goods, during the wrongful detention by the defendant.
    2. It is unimportant whether the decrease in value arises from the defendant’s act or default, or from other causes.
    3. Under a complaint alleging that defendant wrongfully took and detained the goods, to the damage of the plaintiff §5,000, but without any allegation of special damage, the plaintiff may recover damage from depreciation resulting by reason of the lapse of time.
    4. "Under such a complaint, evidence that the goods depreciated from change in the market value or from decay arising from inherent causes, and not resulting from any neglect on the part of the defendants, is admissible.
    5. In an action to recover the possession of specific personal property, if the plaintiff does not resort to proceedings of claim and delivery, or if after he has resorted to such proceedings, the defendant reclaims the goods by giving bond and retains possession of them, the Jury, in assessing the value of the property upon the trial, should find the value of the property at the time of the verdict, and its depreciation since the time of the taking, from any causes proven by the evidence. Interest should be allowed on the whole amount. The amount of depreciation and the interest will form the damages; and the judgment will be for the recovery of possessiou and the sum found for damages, or, if delivery cannot be had, for the amount of the value at the time of the verdict, and the damages.
    6. Where, however, in a case, the Jury found the value at the time of the taking, which exceeded the value alleged in the complaint, and also found the depreciation and the interest, and the plaintiff, by consenting to a reduction of the verdict, had procured judgment to be entered in a form which produced the same result as if the verdict had been in accordance with the rule above stated, held, that the judgment must be affirmed.
    (Before Hoffman, Woodruff and White, J. J.)
    Heard, June 11;
    decided, July 13, 1861.
    Appeal by defendant to General Term, from judgment entered upon verdict for plaintiff, and from order of Special Term denying defendant’s motion for a new trial.
    The action was to recover possession of personal property. The complaint alleged that the plaintiff was lawfully possessed of the goods enumerated, at the time thereafter mentioned, being a stock of goods in the store of the plaintiff, Ko. 235 Eighth avenue, Kew York. That on the 16th of April, 1858, at such store, the defendant wrongfully took said goods and chattels from the possession of the plaintiff, and still unjustly detained the same to his damage of $5,000.
    Judgment was demanded against the defendant for the recovery of the possession of the said goods and chattels, or for the sum of $3,500, the value thereof, in case a delivery cannot be had, together with the sum of $5,000, Ms damages, besides the costs of action.
    
      The answer denied the possession hy the plaintiff of the goods and chattels, or that they were the property of the plaintiff, or were of the value of $3,500, and denied the wrongful taking or detention.
    It stated a judgment recovered in the Oourt of Common Pleas, in favor of one G. W. Merritt, against one George W. Assay, for the sum of $1,860.39, on the 1st of April, 1858; a transcript filed in the office of the Clerk of the City and County of New York, an execution issued thereupon, and a levy thereunder, upon- certain goods and chattels of the character and description of those mentioned and described in the complaint, the taking the same into his custody by the Sheriff, a schedule of which property so levied upon was annexed, marked A, which defendant believed was a portion of the goods ü^putioned in the complaint. Such levy and detention constituted the supposed wrongful taking in the complaint alleged. The answer then contained an averment, that the goods and chattels so levied on were the property of the said George W. Assay, or that he had an interest therein, liable to levy and sale under execution.
    On the trial before Chief Justice Boswobth and a Jury, it appeared that the plaintiff claimed under an assignment from George W. Assay, dated November 30, 1857.
    The validity of this assignment was made out upon the trial; indeed it was scarcely attempted to be questioned. The identity of the goods was established.
    The goods had been counterbonded by the defendant, under section 211 of the Code, before delivery to the plaintiff in the action. They remained in the defendant’s custody at the time of the trial.
    Much testimony was taken as to the depreciation in the value of the goods during such detention, from changes in fashion of some articles, fall in the market, and in some instances, particularly of the linen shirts and other articles of linen, from rotting, in consequence of the starch.'
    The questions in the cause are connected with this subject of depreciation, and arise in the following manner: A witness was asked, “ what would be the present value of the goods, if kept in good condition ?”
    This question was objected to by defendant’s Counsel, on the ground that under the complaint in this action, no special damage could be proved. The Court overruled the objection and admitted the question and evidence, and the defendant, by his Counsel, duly excepted.
    Upon the testimony being closed, the Court charged the Jury as follows:
    That it was their duty to find and assess the value of the property, whether they found for the plaintiff or the defendant, and that if they found a verdict in favor of the plaintiff, it would be also their duty to find the damages which the plaintiff had sustained, which would include the interest on the value of the goods as assessed by the Jury, from the time of the commencement of the action; that they would also find specially the amount of the depreciation of the goods in value, assuming them to have been preserved in good condition.
    The defendant’s Counsel duly excepted to the charge, so far as it instructed the Jury to find the amount which the goods had depreciated.
    The Jury rendered a verdict in favor of the plaintiff and assessed the value of the property at $4,004.97 and damages, for the detention thereof, at $618.33, and also found, as part of their verdict, that the property had depreciated in value, since it was taken by the defendant, in the amount of $2,004.97.
    Whereupon the Court ordered that the cause be reserved for further consideration, and thereafter, upon further consideration had, and after hearing Counsel for the respective parties, ordered judgment to be entered as follows:
    [Title of the Cause.]
    At a Special Teem, &c.
    The issues of fact in this action having been brought before J. S. Boswoeth, Chief Justice of this Court, and a Jury, on the 14th day of June, 1860, and the verdict of the Jury having been entered therein, whereby they found for the plaintiff, and assessed the value of the property described in the complaint, on the 16th of April, 1858, at the time of the taking thereof by the defendant, to be $4,004.97, and the interest thereon as damages for the detention of said property, $618.33, and also found, specially, that the said property had depreciated in value, since it was so taken by said defendant, the amount of $2,004.97, and the Court, on the rendering and entry of said verdict, having ordered that the cause be reserved for further consideration, and, pursuant to said order, Mr. Van Oott having been heard for the plaintiff, and Mr. A. J. Vanderpoel for the defendant, and the plaintiff having elected to remit, and having remitted so much of the sum found as the value of the property at the time it was taken, as exceeds the value of $3,500, the value thereof as stated in the complaint; and also, $87.50 from the said sum of $618.33, (the residue, viz., $530,83 being the interest on $3,500 from the time said property was taken, up to the time said verdict was rendered,) and also $504.97 from said sum of $2,004.97, (the residue, $1,500, being the depreciation in the value of said property, assuming its value, when taken by the defendant as aforesaid, to be $3,500,) and deliberation having been had, and on motion of Mr. Van Oott, of Gounsel for said plaintiff, it is hereby adjudged that the plaintiff recover possession of the personal property described in the complaint in this action, and also the.sum of $2,030.83, damages for the detention thereof, (viz.: said two sums of $530.83 and $1,500,) or in case a return and delivery thereof cannot be had, then that said plaintiff recover of the said defendant the sum of $3,500, the value of said property, as alleged in the complaint, at the time • it was taken by said defendant as aforesaid, and also the further sum of $530.83, the interest on said value, from the time of said taking to the time of the rendering of said verdict, as damages for the detention of said property as aforesaid, and also that the plaintiff recover of the defendant the further sum. of $433.22 for his costs and disbursements in this action.
    The defendant duly excepted to so much of said judgment as directed that the plaintiff recover, in addition to the possession of the said property, the sum of $2,030.33 damages for the detention of the said property, and claimed that the plaintiff was not entitled to that part of said sum which represented the depreciation in value of said property.
    A motion for a new trial was denied at Special Term. From the order denying the same, as well as from the above judgment, the defendant appealed.
    
      A. J. Vanderpoel, for appellant.
    The Court erred in allowing the question, “What would be the present value of the goods, if kept in good condition?”
    ISTo special damages were averred in the complaint. In the absence of averments raising an issue as to the special damage, the plaintiff was limited to such damages as may be presumed necessarily to result from the detention— such as are known by the term general damages, as contradistinguished from special damages, or such as really took place, but are not implied in law. Interest on the value of the property was all the plaintiff was entitled to recover under the facts averred in his complaint. (Brizsee v. Maybee, 21 Wend., 144 ; Code, §§ 277, 142.)
    1. The damages alleged in the complaint were those which the plaintiff had already sustained.
    2. The party has his election to recover the property in specie with general damages, or he may sue for the taking’ and conversion, and recover the value as damages. If, before resorting to the action of replevin, he has sustained special damages, he possibly could recover them under proper averments.
    3. The facts out of which the special damage arose were traversable. Wherever special damages are recovered, it must be on a distinct and definite statement in the complaint. The Code, while changing the forms of pleading, have not changed principles. (Low v. Archer, 2 Kern., 282 ; Vanderslice v. Newton, 4 Comst., 130 ; Armstrong v. Percy, 5 Wend., 535, 538 ; Howard v. Tiffany, 3 Sandf., 695 ; Buddington v. Davis, 6 How. Pr. R., 401.
    
      Joshua M. Van Cott, for plaintiff and respondent.
    The Court properly charged the Jury, that if they found for the plaintiff, they should find as special damage the amount of the depreciation of the goods since they were taken by the defendant. (Code of Procedure, §§ 261, 277 ; Rowley v. Gibbs, 14 Johns., 385.)
   By the Court—Hoffmah, J.

The case of Rowley v. Gibbs, (14 Johns., 385,) is decisive of the point that the plaintiff is entitled to recover damages arising from the depreciation of the goods, during the wrongful detention by the defendant. The plaintiff could not be indemnified without such an allowance, and it is unimportant whether the decrease in value arises from the defendant’s act or default, or from other cause. See also Suydam v. Jenkins, (3 Sandf. S. C. R., 614, 644.)

We think also, that damages could be assessed upon this ground, under the pleadings, without a special allegation of this cause of damage. The averment of the complaint is, that the defendant wrongfully took and detained the goods to the damage of the plaintiff of $5,000. The rule requiring special causes of damage to be set forth is to prevent a surprise upon the defendant. We apprehend that when the source of damage is one so obvious and direct, as the depreciation of goods from lapse of time during a detention, the defendant cannot reasonably urge this ground. It was the natural result of the injury complained of (Chitty on Pleadings, vol. 1, p. 428 ; Driggs v. Dwight, 17 Wend., 71 ; Ward v. Smith, 11 Price, 19 ; Woodruff v. Cook, 25 Barb., 505.)

The evidence shows that a depreciation of 20 to 30 per cent had arisen on woolen goods, and that the shirts became rotten from being kept, in consequence of the starch in them. This is the case, even when ordinary proper care is taken of them. The item of linen goods amounted to $2,699.09. Fifty per cent on that sum alone would make up, with the other items admitted in the points of the defendant, the whole fifteen hundred dollars of depreciation. There is no ground for disturbing the verdict in this respect.

The learned Judge in allowing the question excepted to before stated, and in his charge, that the Jury were to find the amount of the depreciation of the goods in value, assuming them to have been preserved in good condition, must be understood as meaning, the keeping them with proper usual care. Some fell in value from change of fashion; the linens from an inherent cause of deterioration. The question put to the Jury was in substance, what was the deterioration from all causes, treating the defendant as having used ordinary care in preserving the goods.

It will be noticed, that the learned Ohief Justice suspended the entry of judgment until the parties had been heard as to its form, and dealt with the case upon the facts and amounts found by the Jury in this manner.

The Jury found the value of the property when taken, to have been $4,004.97, and the depreciation $2,004.97. But the plaintiff in his complaint claimed the valne to have been $3,500 only. And the present value being found to be $2,000, the depreciation or damages could only be taken at $1,500, with interest. The interest was adjusted at $530.83. The plaintiff was allowed to remit the excess of value and depreciation, which he did, and the judgment was entered in the manner before stated.

We perceive that the result thus reached was the same as if the Jury had found the present value to be $2,000; the depreciation, $1,500; and the interest, $530.83.

Upon a consideration of the various provisions of the Code, we are of opinion, that where the plaintiff sues without resorting to the provisional remedy of claim and delivery; or where, as in the present case, a counter-bond is given and the possession retained, the Jury may be called upon to assess the value of the property at the time of the verdict, and, also, the depreciation in value from the time of the taking, arising from any causes proven by the evidence. This will involve the proof of the value at the taking. They should allow interest on the whole amount. The amount of depreciation and the interest form the damages. Then the judgment will be, under section 277, for the recovery of possession and the sum found for damages; or, if delivery cannot be had, for the amount of the value at the time of the verdict, and the damages.

The action to recover possession of personal property, is the substitute for the action of replevin. The claim and delivery, of section 206, is a provisional remedy under the Code to obtain possession during suit, not the necessary incident of the action.

When this is resorted to, the actual value of the property must be stated in the affidavit; of course its value at the time of making it. (§ 207.) If the defendant would retain possession, he must give an undertaking in double the value as stated in the plaintiff’s affidavit. (§ 211.)

By section 277, in an action to recover possession of personal property, judgment for the plaintiff may be for the possession or for the recovery of possession, or the value thereof in case a delivery cannot be had, and of damages for the detention.

There is nothing in the Code which is repugnant to the idea, that the value in such a case is the value at the time of the verdict. That value is the substitute for the delivery of the property in specie, which, if recovered, would be only worth so much. The fall or depreciation in value forms part of the damages.

In the present case, the process adopted has arrived at the same result as would have been reached upon the course above suggested. It is entirely just, and no rule of law was, as we conceive, been violated.

The judgment must be affirmed, with costs.  