
    Joseph Brady, Pl’ff, v. William H. Beadleston et al., Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Replevin—Bab.
    The failure of a defendant in replevin to demand and obtain affirmative relief, where the property has been delivered to the plaintiff, is not a bar to a subsequent action by him for the value of such property.
    3. Same—Evidence.
    A general judgment in favor of the defendant is conclusive between the parties on the question of ownership, and evidence on that question is inadmissible in the action subsequently brought by the defendant.
    Exceptions ordered to be heard in the first instance at general term.
    
      A. Eckuard Woodruff, for pl’ff; Moses Wdnman, for def’ts.
   Barrett, J.

Stripped of verbiage, the complaint states that the plaintiff Brady was the owner of an ice box, for which the defendants, who compose the firm of Beadleston & Woerz, brought replevin against him in a district court. The marshal in that action, under the usual preliminary proceedings, took the ice box away from Brady and delivered it to Beadleston & Woerz. The complaint there set up title to the ice box in Beadleston & Woerz, and averred that it was wrongfully detained from them by Brady, after demand. Issue was joined by the filing of Brady’s answer, and the issue was tried and a general judgment rendered for the defendant Brady, with costs. Thereupon this action was brought, and upon the trial at circuit the plaintiff had a verdict for eighty dollars. The defendants’ main contention is, that the plaintiff should have obtained his relief in the action in the district court, that he was bound to assert his rights there and to secure an affirmative judgment for the return of the ice box “ either with or without damages for the taking, withholding or detention thereof,” Consolidation act, § 1842, and that having failed to do so, this action cannot.be maintained. We think this position is untenable. It was optional with the defendant in the replevin action to take advantage of this provision of the statute.

It was held in Yates v. Fassett, 5 Denio, 21, that where one who was sued in replevin in the delinet and pleaded non-detinet, and had a verdict in his favor with judgment for costs, but not for a return, afterwards brought trover for the property against the former plaintiff, such action was maintainable, though he might have so pleaded in the first suit as to have entitled himself to a return or to the value of the property in damages. The principle that parties are concluded by the final judgment of a court of competent jurisdiction, not only .as to the subject-matter actually determined, but as to every other matter which was in issue and which the parties might have litigated, is not applicable, for the reason that the defendants’ affirmative claim to the property is in the nature of a cross-suit arising from the summary act of the plaintiff in taking possessioii under the replevin writ. The defendant is allowed by the statute not merely to defend himself against the charges of the complaint, but to set up his affirmative rights as against the actual taking under the provisional remedy. This view was enforced by cogent reasoning in the case cited (pages 31 and 32), and the following observations of Whittlesey, J., are directly in point:

“ But as the defendant made no claim of title, the verdict could not find any title in him, nor the court adjudge any return to him. Such verdict ascertains nothing as to the title of the property, except that it was not in the plaintiff. If the defendant, in whom the title really is, afterwards institutes an affirmative action to obtain possession, is it a sufficient answer on the part of the former plaintiff, who is adj udged to have no title, if he avérs that the real owner should have interposed his claim in the former suit, and having neglected to do so, shall be decreed to have lost it ? I cannot think it is. The plaintiff in the replevin suit was permitted summarily to take possession of the property. On this account the defendant, as a favor, is permitted to plead title with the view of having a return adjudged in the same suit. But I cannot think that he is compelled to plead or be barred from setting up his title afterwards.”

This case was considered and approved in Angel v. Hollister, 38 N. Y., 378, where Woodruff, J., remarked that the fact that the plaintiff “has no affirmative judgment for a return does not, per se, show that he is not entitled to the possession. The illustration given in Yates v. Fassett is apt and conclusive. A defendant in an action may, in a proper case, recoup his damages, and may obtain his affirmative judgment, but the fact that he omits to recoup does not bar his cross-action.”

In this latter case, McKnight v. Dunlop, 4 Barb., 36 (upon which the defendants here rely), was reviewed, and so far as it seems to conflict with Yates v. Fassett, disapproved, Miller, J., stating that the latter case “ has never been directly considered and overruled, and that it should stand as the .better exposition and elucidation of the principle involved and as a well considered ¡and sound decision of the question.” If these views are applicable to the courts of record, a fortiori they should govern in the district courts, where people ignorant of the technicalities of practice so frequently appear without counsel. We think, therefore, that the plaintiff was entitled to maintain this action, and that his failure to obtain affirmative relief in the district court was no bar thereto.

It is also contended that the learned judge erred in excluding evidence tending to show the defendants’ ownership of the icebox. But that question was settled against the defendants in the district court and was res adjudicata. We must assume, in the absence of extrinsic evidence, that the allegations of the plaintiff’s complaint in that action were there put in issue. We find in that complaint an allegation of title in the plaintiffs there, and we also find that a general judgment was rendered in favor of the defendant Brady. ' If the issues actually decided did not embrace the question of title, if the judgment was rendered upon some subsidiary ground, such as the failure to prove a demand, it was incumbent upon the defendants here to make that appear. The judgment was prima facie a bar, and the burden was on them to prove that it was not res adjudicata with regard to some particular alie- _ gation of the complaint put in issue by the answer. This doctrine was laid down in Dear v. Reed, 37 Hun, 594, where a judgment, general in its terms, and disclosing no ground upon which it was rendered, was held to be presumptively a determination of all the issues involved, and that the burden was with the party claiming the contrary to prove that it was not We may add that the proof offered by the defendants on this latter head was, in itself, incompetent, and was properly excluded.

The question of damages was fairly submitted to the jury, and they were properly permitted to allow the real value of the icebox, and the damages actually caused by its removal. And the verdict, under all the circumstances, was certainly moderate.

The exceptions should, therefore, be overruled, and judgment ordered in favor of the plaintiff upon the verdict, with costs.

Van Brunt, P. J., and Andrews, J., concur.  