Opinion
July Term, 1896.
George C. Sawyer, for the appellants.
George T. Hogg, for the respondent.
The right to costs in an action of this character is undoubtedly regulated by the provisions of section 3228 of the Code of Civil Procedure, which, so far as they affect the question presented by this appeal, read as follows:
"The plaintiff is entitled to costs of course, upon the rendering of a final judgment in his favor, in either of the following actions:
"1. * * *
"2. An action to recover a chattel. But if the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages."
The record before us shows that upon the trial all claim for damages for the detention of the property in question was expressly waived; and also that no proof was offered which tended, in any way, to fix the value of such property. With these facts established beyond controversy, it is somewhat difficult to see upon what theory the plaintiffs are entitled to recover any costs. They have prevailed in their action it is true, to the extent of recovering possession of the property claimed; but, inasmuch as they have suffered no damage and have omitted to prove the value of their property, they seem to have brought themselves directly within the provision of the Code above cited, and thereby to have deprived themselves of the right to recover any costs whatever.
The contention of the learned counsel for the plaintiffs is, that the section of the Code already adverted to, must be construed in connection with section 1726, which is one of the provisions of title 2, relating to actions to recover chattels, and which reads as follows: "The verdict, report or decision must fix the damages, if any, of the prevailing party. Where it awards to the plaintiff a chattel, which has not been replevied, or where it awards to the prevailing party a chattel, which has been replevied and afterwards delivered by the sheriff to the unsuccessful party, or to a person not a party, it must also, except in a case specified in the next section, fix the value of the chattel, at the time of the trial."
The argument being that, inasmuch as the chattels in controversy in this action were replevied by the plaintiffs at the commencement of their action and were not subsequently replevied by the defendant, it became unnecessary for the jury to "fix the damages," and that, consequently, this action was excepted from the provisions of subdivision 2 of section 3228; and in support of this argument, the attention of the court is directed to the case of Claflin v. Davidson (53 N.Y. Super. Ct. 122). It must be conceded that this case is an authority in support of the position taken by the plaintiffs upon this appeal; but we find ourselves unable to concur in the view which is there taken of the question under consideration, and which seems to be in direct conflict with a more recent decision of the General Term of the Supreme Court in the second department, viz.: Lockwood v. Waldorf (91 Hun, 281).
Our construction of section 1726 is, that it has no relation whatever to the question of costs, but that it is designed merely to furnish a means of ascertaining the damages which the prevailing party in an action of replevin has sustained by reason of being deprived of the possession of his property, in order that the damages thus ascertained may operate as a substitute or an equivalent for the property itself where the sheriff finds himself unable to deliver possession thereof to the true owner. ( Brewster v. Silliman, 38 N.Y. 423; Phillips v. Melville, 10 Hun, 211.) If the view thus expressed is to obtain, then it is clear that the only provision of the Code which bears upon the plaintiffs' right to costs in this action is the one first adverted to, and the language of this provision is so clear as to require little or nothing to be said in order to give it construction. Under it the plaintiff in an action of replevin, in order to entitle himself to a full bill of costs, must establish, in addition to his right to recover the chattel in controversy, the fact that its value, together with the damages, if any, which shall be awarded to him, amounts to the sum of fifty dollars or more. If, on the other hand, such value and damages amount to less than fifty dollars, he cannot recover costs in excess of the amount of such value and damages; and it follows that if the property has no value and there are no damages he can recover nothing by way of costs.
The obvious design of this provision is to compel the plaintiff, in bringing an action of replevin in the Supreme Court, to make sure that he can establish value and damages to the extent of at least fifty dollars as a condition to the recovery of a full bill of costs; and this construction is in entire harmony with subdivisions 3 and 4 of the same section, all three of which are evidently intended to force a plaintiff to bring his action in an inferior tribunal in cases where the subject-matter in controversy is comparatively small in value. ( Rogers v. Arnold, 12 Wend. 30.) We conclude, therefore, that the order of the Special Term was right and that the same should be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.