
    Lena Sinskie, Respondent, v. August C. Brust and Isaac Sommers, Appellants.
    
      JReplevin — where the summons is not personally served a subsequent action lies for damages — what may be recovered in such subsequent action —• costs, discretionary.
    
    Section 1344 of the Consolidation Act (Laws of 1882, chap. 410), which is applicable to the Municipal Court of the city of New York, providing that where the defendant, in an action brought to recover a chattel which has been, replevied, does not appear and the summons has not been personally served upon him, the justice must proceed to hear and determine the action with respect to the chattel in like manner and with like effect as if the summons had been personally served, entitles the plaintiff, if he succeeds in recovering the chattel, to maintain a separate action to recover' damages for the taking or detention of the property.
    A stipulation made in such an Action, to the effect that the plaintiff was compelled to pay out the sum of fifty-six dollars and sixty cents for marshal’s expenses, counsel fees and court fees.incurred in the action to recover the possession of the chattel, is insufficient to warrant a recovery of that sum.
    Where a chattel belonging to the plaintiff is- taken under an execution against the plaintiff’s husband, and the action is brought.against the execution creditor and the marshal who made the levy, and the court dismisses the complaint as to the execution creditor, but adjudges the marshal liable, it may properly, in the exercise of its discretion, decline to award costs to the execution creditor.
    Appeal by the defendant August 0. Brust from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 11th day of February, 1901, upon the decision of the court; also an appeal by the defendant Isaac Sommers from so much of said judgment as. fails to award costs to him.
    
      David A. Sullivan, for the appellant Brust.
    
      James H. Deignan, for the appellant Sommers.
    
      Frank H. Innes, for the respondent.
   Sewell, J.:

This action was brought to recover damages for taking and detaining chattels.

It appears- that the defendant Sommers recovered' a judgment against one Lucas Sinskie, the husband of the plaintiff. An execution was issued thereon and delivered to the defendant Brust, one of the marshals of the city of New York, who levied upon a horse, wagon and harness of the plaintiff, and took the property into his possession. Thereafter the plaintiff commenced an action in the Municipal Court to recover possession of the chattels, and such proceedings were had that judgment was entered awarding the possession to the plaintiff, without damages for the taking or detention of the same. It appears by the return of the marshal in the action of replevin that personal service of the summons was not made upon the defendant; that the defendant did not reside and could not be found in the county of Richmond, and that the service of the papers was made by delivering the same to Walter S. Scott, the defendant’s agent, in whose possession the property was found.

It was stipulated upon the trial of this action that the plaintiff “ commenced an action of replevin, and as a result of that action, judgment was taken by default on the 13th day of September, and the horse, wagon and harness delivered to her. As to the costs of the action, the expenses were to the marshal, counsel fees and the court fees, summons, etc., she-was compelled to pay out the sum of $56.60.”

The provisions of the Consolidation Act (Laws of 1882, chap. 410) relating to the procedure, the summons, or other process, service and execution of the same, appearances, practice, proceedings and judgment, were, by section 1369 of the Greater New York charter (Laws of 1897, chap. 378), made applicable to actions and proceedings in the Municipal Court. Section 1344 of the Consolidation Act provides that where the defendant does not appear, and the summons has not been personally served upon him, and a chattel or a part of a chattel, to recover which the action is brought, has been replevied, and the proceedings thereupon have been duly taken, as prescribed in this title, the justice must proceed to hear and determine the action, with respect to the chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied in like manner and with like effect as if the summons had been personally served.

I think that the effect of this section is to make the damages for taking or detaining the property a distinct and separate claim, where the defendant does not appear and the summons has- not been personally served.

.The Legislature did not make section 1730'of the Code of Civil Procedure applicable to Municipal Courts. But under that section a court has power to determine the plaintiff’s right to the possession of property which has been replevied only where the defendant neither appears in the action nor is served with process. In -such a case the defendant is not personally bound as to any fact determined in the action, so that he is precluded from denying it in a subsequent litigation concerning matters other than his right to the property affected by the judgment. (Schwinger v. Hickok, 53 N. Y. 280; Rigney v. Rigney, 127 id. 408.)

I am, however, of the opinion that the plaintiff was- not entitled to recover as damages the costs and expenses incurred in the action to recover the possession of the property. I do. not think the admission that the plaintiff was compelled to. pay out the sum of fifty-six dollars and sixty cents, sufficient -to justify the recovery of that sum as special damage. (Cook v. Gross, 60 App. Div. 446.)

It is urged that the court, having rendered a judgment dismissing the complaint as against the defendant Sommers, should have awarded costs to him. Judgment was not given against the plaintiff in the action. She was entitled to costs against one of the defendants, and the court, in the exercise of its discretion, had the power to decline to award costs to the other. (Code Civ. Proc. § 3229; Sawyer v. Gates, 14 N. Y. St. Repr. 236; Hodgkins v., Mead, 25 id. 937; Frazer v. Hunt, 18 Wkly. Dig. 390.)

It follows that the judgment must be modified by-deducting from it the sum of fifty-six dollars and sixty cents, and as modified affirmed, but without costs of this appeal.

Goodrich, P. J., Woodward, Hirschberg and Jerks, JJ., concurred.

Judgment of the Municipal Court modified by deducting from it the sum of fifty-six dollars and sixty cents, and as modified affirmed, without costs of this appeal.  