
    CAYETANO SORIA, Respondent, v. ALEXANDER V. DAVIDSON, as Sheriff, &c., Appellant.
    
      Glairn and delivery—General verdict—Verdict authorizing entry judgment pursuant to section 1730.
    In an action for claim and delivery, the jury found “ a verdict for plaintiff, and assess the value of the goods when taken at the sum of $3,090.90, and the depreciation of the goods since taken at the sum of $650.50.” Held, that, such a verdict was correct in form, and authorized the entry of a judgment that plaintiff recover possession of all the personal property described in the complaint and the sum of $650.50 damages for the detention thereof, or in case a return and delivery thereof cannot be had, then that plaintiff recover of the defendant the sum of $3,090.90, the value of said property at the time of the taking thereof.
    If there was any doubt as to whether the jury found or meant to find that ■ quantity of goods taken was as claimed by the plaintiff, the point should have been made when the verdict was received.
    Before Van Vorst and Freedman, JJ.
    
      Decided January 28, 1886.
    Appeal from an order denying defendant’s motion to set aside the judgment herein, or to direct the clerk of the court to correct the same and make it conform to the verdict of the jury.
    
      The action was brought to recover sixty-six thousand four hundred cigars, and $500 in money. On the trial, the claim for the $500 was abandoned.
    The facts appear in the opinion.
    
      W. Bourke Cockran, attorney, and of counsel for appellant,
    argued: I. Section 1189 of the Code of Civil Procedure provides that the clerk must make an entry in his minutes of the verdict, and must, on the application of the successful party, “ enter judgment in conformity to the verdict, unless a different direction is given by the court, or it is otherwise specially prescribed by law.” No directions were given in this case, by the court. The judgment was not entered in conformity to the verdict. 1st. The jury did not find that the plaintiff was entitled to the property “ described in the complaint;” 2d. There is no finding to sustain that portion of the judgment, which directs that the plaintiff recover possession of all the personal property described in the complaint, except said $500 in money ; 3d. There is no finding to sustain that portion of the judgment which directs that in case a return and delivery cannot be had, then that said plaintiff recover of said defendant the sum of $3,090.90, the value of said property at the time of the taking.
    II. The question of the quantity of goods taken was a question squarely presented to the jury. One set of witnesses testified to the taking of 66,400 cigars, and the other set to the taking of 44,000 cigars. The jury have failed entirely to pass upon this question, and it is left precisely in the position in which it was before its submission to them.
    III. Had the judgment been entered, as the verdict was received, in an absolute form, it would have been reversed on appeal (Dwight v. Enos, 9 N. Y. 470 ; McLean v. Cole, 13 Hun, 300). The contention of plaintiff’s counsel that this is a general verdict is manifestly without foundation. For instance, “we find a verdict for the plaintiff,” would be a general verdict (1186), but the verdiet here is substantially, “We find a verdict for the plaintiff, for the goods taken.” That this is a qualified and not a general verdict is too plain to require argument.
    
      Henry L. Vilas and Jacob Fromme, for respondent,
    argued I. The verdict was the ordinary one in an action to recover a chattel (§§ 1186, 1187 Code). It was a general verdict: The jury find “ a verdict for the plaintiff, and assess the válue of the goods, when taken, at the sum of $3,090.90, and the depreciation of the goods at the sum of $650.50.” This was in accordance with the settled law and practice (Young v. Willett, 8 Bosw. 486 ; Phillips v. Melville, 19 Hun, 211); and showed that the jury found in favor of the plaintiff for all the goods. A general verdict settles in favor of the prevailing party every litigated question of fact (Rhodes v. Bunts, 21 Wend. 19 ; Wolfe v. Godhue Fire Ins. Co., 43 Barb. 400 ; Murphy v. Lippe, 35 Super. Ct. 542).
    II. The Code prescribes that the judgment in this class of actions shall be in the alternative (§ 1730). The whole question has been settled by the general term of this court in Young v. Willet (8 Bosw. 486).
   Per Curiam.

The verdict was recovered in an action for the claim and delivery of personal property.

It was general, and in these words : the jury say they “find a verdict for the plaintiff, and assess the value of the goods when taken at the sum of $3,090.90 and the depreciation of the goods, since taken, at the sum of $650.50.”

No objection was made at the time by either party to the form of the verdict.

Complaint is now, however, made on the behalf of the defendant, as to the form of the judgment entered up. It recites that the jury found for the plaintiff, and assessed the value of the property “ described in the complaint,” &c., and it adjudges that the plaintiff recover possession of all the personal property “described in the complaint,” &c.

It is true that the verdict does not say that the jury find for the plaintiff, that he is entitled to the property described in the complaint.” The finding, as already stated, is general, and such finding is allowed in an action of this character (Code, § 1187). The verdict has none of the qualities of a special verdict. The verdict is, in form, correct (Young v. Willet, 8 Bosw. 486 ; Phillips v. Melville, 10 Hun, 211).

A general verdict settles in favor of the prevailing party every question of fact. The question as to the quantity of goods taken by the defendant was in dispute. The plaintiff offered evidence showing that the complaint truly stated the amount. The defendant offered evidence to the contrary. The finding of the jury in the plaintiff’s favor for the goods taken, must be construed to be the quantity claimed by the plaintiff, and the value assessed upon that basis. If there was any doubt upon the subject, a point should have been made, when the verdict was received, and when it was not too late to have had it corrected. Every presumption is in favor of the regularity of the verdict, and that it found in the plaintiff’s favor the amount of goods claimed by him, as well as its value.

It is no objection to the judgment that it is in the alternative,—that is, that in the event the goods cannot be recovered, and delivered, the plaintiff recover his damages (Code § 1730).

The order appealed from is affirmed, with costs and disbursements.  