
    Gustav A. Kirchner, Pl’ff, v. The New Home Sewing Machine Co., Deft.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Release—Tender.
    To obtain release from, an arrest plaintiff gave to defendant a bill of sale of certain goods, but subsequently sued to set it aside and for an accounting, and obtained an injunction. Notwithstanding this, defendant’s servants ejected plaintiff, and took possession of the store and contents. After numerous arrests and litigation, plaintiff gave a release to obtain his goods, but found them injured by neglect. In an action to recover such, damages, Reid, that the release did not cover injuries of which he was ignorant at the time it was given, and that it was' not necessary that he return what he had received as a consideration therefor before he could maintain the action.
    
      2. Damages—Code Civ. Pro., § 1669.
    In an action of forcible entry, treble damages cannot be allowed under § 1669 of the Code because of a conversion of plaintiñ’s goods .by defendant’s servants, which formed no part of the trespass, though concurrent in time.
    Appeal from judgment in favor of plaintiff for $6,000 entered upon verdict; from order denying motion for a new trial, and from order denying plaintiff’s motion for treble damages under § 1669xof the Code.
    
      M. L. Towns, for pl’ff; Lehmaier & Williams Osborn M Bright, of counsel), for def’t
   Dykman, J.

This action was commenced for the recovery ol damages sustained by the plaintiff for several wrongs perpetrated upon him by the defendant

The plaintiff produced testimony tending to prove the allegations of his complaint, and the defendant introduced contradictory evidence, and also proved a release executed by the plaintiff. ■

It was the insistence of the plaintiff that the release related only to a particular subject, and did not and was not intended to release the causes of action set up in the complaint

That question of fact was submitted to the jury under proper instructions by the trial judge, with the other questions of fact involved in the case, and the jury found a verdict for the plaintiff, and so we must assume found all the facts in favor of the plaintiff. '•

Such being the case, after the verdict with all the facts settled according to the contention of the plaintiff the law of the case becomes plain, and the verdict must stand.

Upon a contradictory statement of facts, there is but little room for the interference of the appellate tribunal.

All the questions of law were properly disposed of upon the trial, and no errors were committed.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

The plaintiff made a motion for treble damages which was denied, and he has appealed from that order.

That motion was properly denied, and the order should be affirmed, with ten dollars costs and disbursements.

Pratt, J.

In 1885 the parties, plaintiff and defendant, each claimed an indebtedness against the other.

Defendants caused the plaintiff to be arrested, and to gain his liberty he executed a bill of sale of eight sewing machines and other property as security for any balance he should be found to owe.

Their dealings continued and not getting a settlement, plaintiff, claiming a large balance due him, began an action for an accounting, and for the cancellation of the bill of sale.

He also obtained an injunction against interference with his property.

In disregard of the injunction defendants’ servants forcibly ejected plaintiff from his shop and took possession of the •contents.

He began proceedings for “forcible entry and detainer” but the judgment was rendered unavailing by a lease executed by the landlord to an employee of defendants not named in the process.

After enduring numerous arrests, despairing of redress by legal means, plaintiff executed to defendants a release, expecting to thereby regain possession of his premises and goods.

When he returned to his place he learned that his goods had -been largely used or sold by defendants and bis machinery ruined by neglect, rain and frost

In answer to his action defendants interpose the release as a defence.

The court charged the jury that if it was the intention of the parties by the release to cut off all claims existing between the parties, the plaintiff’s action must fail. But that if the only subject of negotiation between them was the release by plaintiff of his rights under his action for an accounting and his claim against them for false imprisonment, then the release would not operate beyond the matters mentioned in the particular clause or in the preliminary discussion.

The court also stated that a release would not operate to cut off -rights the existence of which was unknown to the releasor.

A verdict of $6,000 being rendered,. defendants bring this appeal.

The charge was in accordance with the rule laid down by us on a former appeal in this cause. 59 Hun, 186; 37 St Rep., 189.

It is now suggested that plaintiff cannot maintain his action without restoring or offering to restore what'he received in con.sideration for the release.

If the plaintiff’s right to recover depended on his setting aside 'the release, the point would merit attention. But the plaintiff has no need to set aside the release. Let it stand, and be enforced according to the principles of law as we have declared them, and the plaintiff’s right to the verdict will not be impugned.

The release was declared by the circuit judge to be valid for all the purposes in the contemplation of the parties at the time it was executed and considered in the preliminary discussions or recited in the particular clause.

Unless a wider recovery was sought, there was no need to set .aside the release nor to restore what was received as its consideration. Lindo v. Lindo, 1 Beavan, 496; Turner v. Turner, 42 Law Times, 495; Barclay v. Lucas, 1 D. & E., 291 n.; Lyall v. Edwards, 6 H. & N., 337.

Defendants suggest that responsibility for the trespasses now recovered for was involved in the accounting suit pending in the -city court, to which the release is conceded to have referred. That suit was begun October 31, and the entry into plaintiff’s store, which took place four days later, was not then in existence as a •cause of action.

It is true testimony was given that defendants intended the release to cover everything, but the jury have found with the-plaintiff upon that point

And as remarked by the presiding judge in his opinion on, the former appeal, plaintiff could not .have intended to give up-, his right to demand a return of his goods, as it was to procure-such return that plaintiff made the settlement.

Defendants say their right to the possession and retention of. the articles described in the bill of sale is beyond question, and argue that some of the damages. allowed must have been based upon plaintiff’s being deprived of those goods.

On the contrary, they had no right to the goods except as security for a debt due them.

If no debt existed, the bill of sale was dead.

The plaintiff testified that he owed them nothing, and unless-his statement is correct we are at loss to súpply a motive for their refusal to meet that question in court. Their conduct is not: easily explained upon any theory, except that they were, aware that the accounting would result in his favor.

Why should they violate an injunction and seize with a strong-hand what they could obtain by legal means?

Nor are we able, in the absence of a special verdict, to say that: damages weré based upon the retention of such articles.

It is suggested that evidence of damage not contained in the bill of particulars was improperly received.

The bill of particulars is not before us, and no error is apparent.

Wo find no error of which defendants can complain, and the judgment must be affirmed, with costs.

The plaintiff appeals from the denial of his motion for treble-damages.

It may well be that some part of the verdict was based ripon the conversion of plaintiff’s goods by servants of defendant acting-under its orders.

That was not a part of the trespass upon plaintiff’s land, thought concurrent in time. We think the motion for treble damages was-properly denied.  