
    The National Cash Register Company, Respondent, v. William E. Agne and Bernard’s Pharmacy, Appellants.
    
      Replevin — the value of a chattel must be fixed as of “the time of the trial.”
    
    In an action brought to replevin a cash register purchased almost two years before the trial of the action, a judgment fixing the value of the register at the purchase price, which was the only evidence given on the trial upon the question of value, is. erroneous, as section 1726 of the Code of Civil Procedure requires the judgment to fix the value of the chattel “ at the time of the trial.”
    
      Appeal by the defendants, William E. Agne and another, from a. judgment of the Municipal Court of the city of New York in favor of the plaintiff.
    
      Max Meyer, for the appellants.
    
      William L. Perkins, for the respondent.
   Hatch, J.:

The action is replevin, and the property replevined is a cash register, delivered by the plaintiff to the defendant Bernard’s. Pharmacy and assigned by the latter to the defendant Agne under a.. conditional contract of sale, which stipulated that the title to the property should remain in the plaintiff until the purchase price was-fully paid. The purchase price had been fully paid at the time the action was instituted, except the sum of fifteen dollars and sixty cents. Judgment has been rendered in favor of the plaintiff for the recovery of the property, and in default of its delivery for the sum of two hundred and fifty dollars, and the costs of the action, amounting to the sum of -twenty-six dollars and fifty cents. For a debt of fifteen dollars and sixty cents, it is possible, therefore, that the plaintiff may receive two hundred and seventy-six dollars and fifty cents. To ascertain how such a result may be reached requires a careful scrutiny of the proceedings producing it. The judgment should not be sustained unless the plaintiff establishes a certain fixed legal right-entitling it thereto.. It was conceded upon the argument, and an. examination of the record confirms the concession, that the only evidence of the value of the chattel replevined was its purchase price,, and it is upon this evidence alone that the court assessed its value. The contract of purchase bore date the 14th day of June, 1897,.. and the register was delivered at that time. The action was instituted by the service of a summons on March 14, 1899, a trial was-had on the fourth day of the following April, and judgment passed, against the defendant on the eleventh of that month. It is evident,, therefore, that the assessment of value was made to depend upon what, the property was worth on the 14th day of June, 1897, as measured-by its purchase price. The Code of Civil Procedure (§ 1726) requires, that the value of the chattel shall be fixed “ at the time of the trial,” Of the value at that time there was no evidence. This was a. material question, and failure to observe the Code provision constitutes legal error. (Button v. Chapin, 7 Civ. Proc. Rep. 278; Duffus v. Schwinger, 79 Hun, 541.) The purchase price of property, when sold for cash, is in some cases evidence of value; but such rule does not have application where the sale, as here, was for credit, with payment to be made upon the installment plan. But in no event can such rule have application to the present case, for, as we have seen, the statute requires the value to be determined as of the time when the trial was had. As there was a failure of compliance with this rule, the judgement should be reversed and a new trial ordered.

All concurred, except Woodward, J., not sitting.

Judgment of the Municipal Court reversed, and new trial ordered in the same district in which the action was originally brought, costs to appellants to abide the event.  