
    C. Albert Jacob, Respondent, v. Clarence S. Watkins, Appellant.
    
      Possession, only presumptive evidence of title— amendment as to the amount claimed, on an appeal to the County Court from a Justice’s Court, in excess of the jurisdiction of the Justices Court—measure of damages,' interest and rental.
    
    Possession is usually evidence of ownership; hut where the character of the right is explained by a written instrument, the question of ownership is to be determined therefrom.
    Upon an appeal from a judgment rendered in a Justice’s Court, the County Court may allow an amendment increasing the amount for which judgment is asked to a sum in excess of the jurisdiction possessed by a justice of, the peace.
    In an action of replevin for the recovery of a piano, it is pot a good ground of objection by the defendant that the court instructed the jury that they might consider the interest upon the sum proved as the value of the piano, when rental damages were proved and were recoverable and exceeded what the interest would have amounted to.
    Appeal by the defendant, Clarence S. Watkins, from a judgment of the County Court of the county of Queens in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of June, 1896, upon the verdict of a jury, and also from an order bearing date the 16th day of June, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    The action was in replevin to recover a piano or its value and damages for its detention. The plaintiff and his copartner consigned the piano to one John McCrann for sale on their account, the piano to remain their property until sold by McCrann. The property was seized on an execution against McCrann and sold to the defendant.
    
      George B. Stoddart, for the appellant.
    
      Morris Putnam Stevens, for the respondent.
   Per Curiam:

When this case was before us on a former appeal (Jacob v. Watkins, 3 App. Div. 422), we held that the evidence warranted the court in holding that the defendant acquired no title to the piano upon the execution sale. The present record in this regard is not changed from what before appeared. The former decision must, therefore, be held as controlling. It is undoubtedly true that possession is usually evidence of ownership. But where the possession is explained, and the- character of the right thereto appears, ownership is to be determined therefrom. In the case before us it appears, by the written instrument, that the ownership of the piano remained in plaintiff’s assignor and that McCrann’s possession was simply that of agent to sell. It could not, therefore, be taken on execution for his debt. The character of his possession, therefore, was not the subject of dispute and there was left no question of fact for the jury’s consideration in this respect. We find no substantial error upon this trial which may legally be made the subject of complaint. The witness who testified to McCrann’s signature had sufficient knowledge upon the subject to make him a competent witness. (Hynes v. McDermott, 82 N. Y. 52.)

Plaintiff was entitled to recover possession of the piano, together with damages for its detention. The fact, if it be one, that the amendment allowed in the County Court changed the amount, for which judgment was demanded, to a sum in excess of the jurisdiction possessed by a justice of the- peace,-does not constitute error. The County Court possessed jurisdiction and the proceedings were governed by its jurisdiction, not that of the Justice’s Court. (Code Civ. Proc. § 3071; Gould v. Patterson, 87 Hun, 533.)

There is no ground for complaint in the rule of damage adopted by the court. The evidence was sufficient upon which to base damages measured by rental value. The fact that the court also told the jury that they might consider interest upon the sum proved, as the value of the piano in lieu of the rental value, does not constitute reversible error, assuming the court was wrong. The defendant was not thereby prejudiced, as it left the jury at liberty to award a less sum as damages for detention than the plaintiff was entitled to, if such damages were measured by the rental value. The fact that the jury did not adopt the interest as the measure of damages furnishes no ground for complaint. The verdict as first reported was irregular, and it, therefore, became the duty of the court to direct the jury to retire and make up a proper verdict. This was done, and the verdict as finally rendered expressed the determination at which the jury had arrived. ( Warner v. N. Y. Central R. R. Co., 52 N. Y. 437; Brigg v. Hilton, 99 id. 517; Hodgkins v. Mead, 119 id. 166.)

We find no error. The judgment should, therefore, be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  