
    Joseph Porges, Respondent, v. Charles Cohen, Appellant.
    (Supreme Court, Appellate Term,
    June, 1898.)
    1. Replevin — Former adjudication.
    A dismissal of an action of replevin, “ for a failure to place on calendar,” is not “ a final judgment ” within the meaning of section 1691 of the Code of Civil Procedure and does not bar a second action of replevin for the same cause of action.
    52, Same — Demand, where possession is rightful.
    Where possession of chattels.has been obtained rightfully, a demand, before action brought, must be alleged and proved, and a failure in . this regard justifies a reversal of the judgment.
    Appeal from a judgment, rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, fifth district, in an action of replevin.
    Moses Feltenstein, for appellant.
    R. Nathan, for respondent.
   Per Curiam.

The order or direction of the justice dismissing the former action instituted to recover the chattels in question ■ for failure to place on calendar,” was not a final judgment in that action within the meaning of section 1691 of the Code of Civil Procedure, and did not, therefore, operate as a bar to a recovery in this action. But we think that the judgment should be reversed for the reason that no demand is shown to have been made upon the defendant before the commencement of the action. Where an action is brought, as is the case here, for the wrongful detention of the property, and it does not appear that the original possession of the same by the defendant was wrongful, a demand, must be alleged and proved. Furthermore, there is no evidence in the case of the value- of the property sought to be reclaimed which wiH support the finding of the justice fixing the same at the sum of $50. • For these reasons the judgment must be reversed.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. |

Present: Beekmae, P. J., Gildeesleeve and Giegeeich, JJ.

Judgment reversed and new trial ordered, with Costs to appellant to abide event. :•  