
    The Corn Exchange Bank, Resp’t, v. Alphonzo W. Blye, Rec’r, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    Replevin—Action for damages for detention during appeal.
    Where an appeal is taken by defendant in an action of replevin from a judgment awarding possession to, the plaintiff, and pending such appeal the property depreciates in value, the plaintiff may maintain an action for such depreciation.
    Appeal from judgment overruling demurrer to the complaint.
    Action to recover the sum of $19,000, whiter 'is claimed to be the extent of depreciation in value of forty-six bonds during the time plaintiff was deprived thereof. The facts appear in the opinion.
    
      William Vanamee, for app’lt; L. A. Gould, for resp’t.
   Barnard, P. J.

The action was brought to obtain possession of a chattel by the owner against one who without right claimed possession thereof. The plaintiff, in 1885, recovered a judgment, finding the title and the right to immediate possession to be in the plaintiff. The judgment, as required by law, fixed the then value of the property so that if the plaintiff could not have the specific property the value might be collected in lieu thereof. It was then competent for the wrongdoer to return the property, but he did not do so. An appeal was brought by him to the court of appeals, where it was heard and decided in 1889, some four years after the trial and judgment. Pending this appeal the property fell in value nearly or quite $20,000. The defendant upon the affirmance of the judgment released the identical property, as he was permitted by the judgment appealed from and affirmed by the court of appeals. The question presented by the demurrer is whether an action will lie for the depreciation by the owner against the claimant. The judgment only settled the title. The plaintiff owned the chattel, both before and after the judgment of the trial court. No damages for the future detention could be included in the judgment, and if the appeal continued an unlawful possession without remedy the plaintiff will not have any complete remedy for the invasion of his property rights. The cases ■cited that an action for damages for a wrong cannot be split up do not seem to apply to a case like this. If the action had been one for a conversion only, when the judgment would make a complete restitution in damages, no action would lie for a further increase in value of the property pending appeal. The judgment and interest upon it would be collectible at all events. The result is not so in this action. If the contest had been about a package of bank bills no judgment in replevin could include the interest based upon a prospective appeal nor a depreciation pending such appeal.

This action must be supported or a wrong will go unredressed. Section 1722 of the Code was designed to give this remedy. It provides that when depreciation in value happens while the chattel is in possession of the defendant, the plaintiff can have an action for the depreciation if it happened under such circumstances that the plaintiff might recover for the injury or depreciation of the defendant therefor. For the damages up to the trial he has recovered.

The detention after the trial is a new offence and wholly without remedy unless the plaintiff can treat the additional detention as a new cause of action under this section and also under § 1691 of the Code, which rescinds the right of action of a defeated plaintiff in replevin to recover damages for the detention unless the judgment was given against him on the merits. The value of the use during the time of the illegal detention is the proper measure of damages in replevin of a personal chattel when it has a usable value. Allen v. Fox, 51 N. Y., 562. This case referred to a horse. How could the usable value of a horse be recovered unless by this action.

The judgment sustaining the complaint should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  