
    Ethel Roth, Respondent, v. George L. Felt and The St. Louis Realty Company, Appellants.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Pleading—Amendments—Amendments by leave of court — Time for amendments—Amendments at the trial.
    Replevin — Trial, judgment, enforcement of judgment, and review'— Judgment — Damages.
    In an action of replevin to recover chattels, alleged to have been delivered to the defendant under a contract by which the title to them was to remain in the plaintiff until paid for, it is error to permit the plaintiff to amend his complaint on the trial by striking out the allegation that the contract provided title should remain in the plaintiff and alleging instead that the plaintiff had rescinded the contract.
    In an action for replevin the plaintiff can only recover the value of the chattels and cannot recover in addition thereto the value of labor performed in installing such chattels in the defendant’s building.
    Appeal by the defendants from a judgment of the City Court of the city of blew York, rendered in favor of the plaintiff.
    Alfred E. Smith, for appellants.
    Strasbourger, Eschwege & Schallek, for respondent.
   Per Curiam.

The plaintiff has recovered a judgment in replevin. The complaint sets forth a contract under which the plaintiff delivered chattels to the defendants and alleges that under this contract the title to the chattels was to remain in the plaintiff until they were paid for or notes given for the purchase price. In the course of the trial, the plaintiff was permitted, over the objection and subject to the exception of the defendants, to abandon this cause of action and substitute another. The court permitted the plaintiff to so amend the complaint as to strike out the allegation that, under the contract, the title to the property remained in the plaintiff and to allege that the plaintiff had rescinded the contract. This amendment should not have been permitted at the Trial Term under the circumstances disclosed upon this record. It appears, nevertheless, that the plaintiff secured judgment for the return of the chattels or for $617 and interest. The sum of $617 includes, not only the value of the chattels, but also the value of the labor in installing them in the building. While the proof indicates that the value of the labor of installation was a substantial part of the sum of $617, the precise amount is not shown. The value of work, labor and services cannot be recovered in an action of replevin. Yet, in this action, the plaintiff was awarded judgment for work, labor and services as well as for the value of the chattels.

The record presents several other errors which need not now be commented upon, as the judgment appealed from must be reversed for the reasons stated.

Present — Gildersleeve, MacLean and Seabury, JJ.

Judgment reversed and new trial ordered, with costs to appellants to abide the event.  