
    Henry B. Fischer et al., Appellants, v. Jacques Cohen et al., Respondents.
    (Supreme Court, Appellate Term,
    December, 1897.)
    1, Replevin — Conditional sale — Form of judgment for plaintiff.
    Where a piano is sold upon a condition precedent of full payment, the vendor may maintain replevin against one who purchased it in good faith at an auction sale; and as the vendor is entitled to possession, the judgment must award it to him in the form prescribed by section 730 of the Code, of Civil Procedure (made applicable to District Courts of the city of New York by Laws of 1882, chap. 410, § 1343); and a judgment by which the justice of such a court directs that if the defendant shall pay into the court the amount still due and unpaid upon the piano, together with certain costs, he shall have judgment for its return, without costs, is wholly unauthorized.
    2. Same — When the verdict need not fix the value of the chattel.
    There is no statutory provision which requires the verdict, in an action of replevin, to fix the value of the chattel where the verdict awards possession of the chattel to the person to whom it has been delivered by the officer.
    
      Appeal by plaintiffs from judgment of the Eleventh District Court.
    Thomas F. Byrne, for appellants.
    M. Esberg and A. C. Anderson, for respondents.
   McAdam, J.

The action was in form for replevin to recover the possession of a piano alleged to belong to the plaintiffs, of the value ' of $200. The piano was delivered to the defendant Belle Stanley, February 29, 1892, under a conditional sale agreement reciting that the vendee had given in exchange a Stoddart piano, at $75, and paid $10 on signing the agreement, and providing that if she paid $25 on the 1st day of May, 1892', and $10 a month on the first day of every month thereafter, until the payment.of the purchase price, $400, the agreed value of the instrument, the plaintiffs would deliver- to her a bill of sale thereof. The vendee paid in all, $383, leaving $17 of the agreed $400 unpaid.

The contract also contained a provision that in ease default was- ' made in any of the payments or conditions the plaintiffs might resume possession of the piano and hold it until payment of the full price thereof. The agreement was executed in duplicate; and one was delivered to the vendee, which obviated filing in.order to give-constructive notice. Laws 1888, chap. 225.

Stanley, the vendee, could not be found by the plaintiffs, and was ■ not, therefore, served with probess. The piano was found in the possession of the defendant Cohen, who had purchased it in good faith- at an auction sale for $81, and the action proceeded against him. -The instrument was taken from Cohen by the marshal, under the replevin writ, and for want of a counter bond was delivered to the plaintiffs, in whose possession it now is.

The plaintiffs, under their contract, were entitled, even- as against the defendant Cohen, to resume possession of the piano and to hold it until the balance of the purchase price was paid, ■ and were consequently entitled to judgment awarding such possession to them.. Upon possession being awarded to the plaintiffs, the defendant Cohen may in any manner he deems advisable litigate with them ’ the question whether he is the successor in interest of -the conditional sale vendee under the statute (Laws 1888, chap. 225), and - have determined in such litigation any right, to subrogation or redemption he may-have. It is sufficient to say that these questions are not before ns for decision now. Replevin is a possessory action, and the issue to be determined by it is the right of the parties litigant to possession of the subject-matter at the time the action was commenced.

Instead of rendering judgment in favor of the plaintiffs, the justice in his return says: The case here closed, and I thereupon, to-wit: on the 11th day of August, 1897, rendered judgment as follows : Upon deposit by defendant Cohen in court of $17, together with $5.50 costs, for the benefit of the plaintiffs, there will be judgment for the defendant for the return of the piano, without costs.”

The justice must have determined from the evidence, before he ■ could have awarded the plaintiffs costs, that they were entitled to the possession of the piano; but, instead of awarding them a judgment therefor, he did what he evidently regarded as tantamount to it. The difficulty with his equitable disposition of the controversy is that it finds no warrant in the law.

The judgment should have been in the form prescribed by section 1730 of the Code (made applicable to District Courts by the Consolidation Act, § 1343), which provides that Final judgment for the plaintiff must award to him possession of the chattel recovered by him, with his damages, if any.” An execution on such a judgment is specially provided for. Code, § 1731, made applicable to District Courts by § 1343 of the Consolidation Act. But no execution could issue on the provisional judgment rendered by the justice, because not in harmony with statutory requirements.

It is claimed by the respondent Cohen that the justice properly fixed the value of the plaintiffs’ special property as against him, he having become the general owner, and Allen v. Judson, 71 N. Y. 77; Townsend v. Bargy, 57 id. 665, and Fowler v. Haynes, 91 id. 346, are cited in support of the contention. An examination of those cases will show that the special owners prevailed as to the right of possession; and the property being in the custody of the general owners, it was held that as against them the sum to be paid in the event .of failure to obtain possession of the property was only the value of the special ownership therein. But here the property was in the actual possession of the prevailing parties, and the judgment, when put in legal form, leaves it there undisturbed. They did not ask to recover anything in addition to the possession, except costs. The question of value was, therefore, quite immaterial.

There is no provision in the Code requiring the verdict in an action of replevin to fix the value of the chattel where it awards possession thereof to the person to whom it has been delivered by the officer. Code, § 1726; Claflin v. Davidson, 8 Civ. Pro. 46.

As we have power to “ reverse, affirm or modify the judgment appealed from ” (Code, § 3213), it must be modified by making it conform to statutory requirements; that is to say, there must be judgment for the plaintiffs for the possession of the chattel recovered by them, with $5.50 costs.” See Fitzhugh v. Wiman, 9 N. Y. 559, 565; First Nat. Bk. v. Kelly, 57 id. at p. 34; Goldstein v. Greenberg, 18 Misc. Rep. 61.

Judgment modified accordingly, without costs.

Dalt, P. J., and Bischoff, J., concur.

Judgment modified in accordance with opinion, without costs.  