
    Ashley vs. Marshall.
    The plaintiff brought his action to recover damages against the defendant, for entering the plaintiff’s premises and taking possession of certain personal property; and he obtained an injunction, to restrain the defendant from meddling with the property. He then sold the goods himself, and received the avails. The defendant claimed the property as mortgagee, by virtue of a mortgage executed, by one S., and alleged in Ms answer, that being prevented by the injunction, from removing and disposing of the property, he lost Ms debt against S. On the trial the defendant proved that a portion of the goods belonged to him, and he recovered a judgment against the plaintiff, for the conversion thereof, for a sum over $50. Held that from the form of the action, and the mode of procedure which the plaintiff had adopted, the defendant must be considered the successful party, and was therefore entitled to costs.
    APPEAL from a judgment entered upon the report of a referee. The action was brought to prevent the defendant, Marshall, from interfering with certain articles of personal property, and to recover damages for having so interfered therewith, and for entering, hy force, and closing up the plaintiff’s premises, and destroying his trade and business, the plaintiff claiming damages therefor. The court did interfere by preliminary injunction, and forbade the defendant to interfere with the property. The defendant Marshall, by his answer, claimed the property in virtue of a mortgage executed to him hy the defendant Steckel, and claimed the right to enter said premises, and take possession thereof. The referee found the property in question, claimed by the defendant Marshall, under the mortgage, to be the property of the plaintiff, and that the mortgage was void, that the entry was unlawful, and that the trespasses complained of had been committed. The referee also found, that some weeks or months after this suit was commenced, the plaintiff sold the property in question at auction, and that among the same were some articles which had formerly belonged to the defendant Steckel, and which had passed to the defendant Marshall, under the mortgage above referred to. The referee found the value of this property, and reported in favor of the defendant Marshall, for such value, $131.28, with costs of this action. The plaintiff excepted to the report, and appealed from the judgment entered thereon.
   By the Court, Clerke, J.

This action was commenced to recover damages against the defendant for forcibly entering the premises of the plaintiff and taking possession of the plaintiff’s personal property, situated there, consisting, principally, of furniture. On the commencement of the action the plaintiff obtained an injunction to restrain the defendant from .taking possession of, selling, removing, or in any manner interfering with this personal property. The defendant, in his answer, claims this property by virtue of a mortgage, executed to him on the 13th November, 1855, by one Steckel, who was then in possession of the premises, and of the personal property in question. He also sets up that pursuant to the authority contained in the mortgage, he had a right to take possession of the personal property; but that after he had taken possession of it, and when he was about to remove and dispose of it, he was prevented from doing so by reason of the injunction, and consequently lost the debt and suffered damage to the amount of his claim against Steckel. He also denies every material allegation in the complaint. It appears from the testimony before the referee, to whom the issues were referred, that at the commencement of the action most of the furniture mentioned in the complaint belonged to the 2olaintiff; that he was the assignee of an unexpired term of a leasehold interest in the premises, which were used as a hotel; that Steckel was in possession by permission of one Doolittle, whom the plaintiff allowed to occupy it; that Steckel kept it, consequently, as landlord, from the 1st of May, 1855, until the month of May, 1856; and that having purchased furniture for the use of the hotel from the defendant Marshall, he gave the latter the mortgage above mentioned, on all the furniture there, including the articles which he had purchased from Marshall. The mortgage having become forfeited, Marshall went to- the hotel, took possession of all the furniture, and forcibly nailed up the doors of the rooms in which it was contained, and caused it to he advertised for sale. The plaintiff, however, as soon as he obtained the injunction, took possession of the furniture, and sold it all at auction. The referee of course allowed nothing to the plaintiff for his furniture, as he had already recovered possession of it, hut allowed him $25 for the intrusion of Marshall into the hotel; and he gave to the latter a judgment for $138.87 with interest, against the plaintiff, as damages, on account of the conversion by the plaintiff of Marshall’s share of the furniture.

If the defendant had set up in his answer a claim for this portion of the furniture, there could be no doubt that the referee would have been justified in allowing him this amount, or whatever it was worth. But, was this necessary? The plaintiff claimed the whole, and the defendant claimed the whole; and in claiming the whole he of course claimed the part, to which the referee found he was entitled, bio separate claim or counter-claim for a part seems to me, therefore, necessary. Both parties claimed too much; the plaintiff failed to recover what" he demanded, and having obtained possession of the whole and sold it, he was clearly accountable to the defendant for the value of that portion of it which belonged to the latter. If the plaintiff claimed only as much as it was proved he was entitled to, and" the defendant at the trial endeavored to prove that the plaintiff, during the same transaction, took possession and. disposed of other property not included in the complaint, belonging to the defendant, it would not be proper to allow such a defense without a formal counter-claim set up in the answer. But, in claiming the whole, he does in effect set up a counter-claim to the part which he proved belonged to him. It is a claim, counter or contrary to the claim of the plaintiff, who demanded the whole, but was only entitled to a part; the other part belonging to the defendant.

As to the mere claim for damages arising from the injunction, it would not have been proper for the referee to have passed upon it. Nor does he appear to have done so. He considered that the defendant had established his right to a portion of the property in question, and gave him a judgment accordingly. It seems severe, that the plaintiff, who had a good cause of action for an amount exceeding the sum that the defendant proved himself entitled to, should be compelled to pay the whole costs of the action to the defendant. If the defendant had kept possession of the whole and sold it, the plaintiff’s share of the proceeds over and above what the der fendant was entitled to, would have been sufficient to carry costs. But from the form of the action, and the mode of procedure which the plaintiff has adopted, costs must, I think, be awarded to the defendant as the successful party. This is an ordinary common law action for damages; to be sure, an injunction is prayed for; but this, even if entirely proper to grant it, under the circumstances disclosed in the complaint, does not make it an equity suit. I regard the whole procedure of the plaintiff as anomalous and unfortunate. It was totally unnecessary for him to commence the action in the form which he selected. If he commenced an action for the claim and delivery of the goods under chapter two of the code, and the sheriff delivered them to him under the ordinary process for the recovery of specific personal property, and if he established his claim at the trial, still he would be entitled to the costs of the action, although he had obtained possession of the property. And' this would have been quite as effectual a remedy, to say the least, as an injunction. Not having done this, but having prosecuted an action for damages, in which his adversary is, in effect, the successful party, costs follow for the defendant as a matter of course.

[New York General Term,

November 7, 1859.

The judgment should be affirmed, but without costs of the appeal.

Roosevelt, Clerke and Sutherland, Justices.]  