Adin A. Smith, Respondent, v. Timothy Dinneen, Appellant

Adin A. Smith, Respondent, v. Timothy Dinneen, Appellant. Replevin--— when the verdict is so indefinite as to require the reversal of the judgment ■entered thereon. In an action brought in a Justice’s Court to replevin a wagon wheel which haa been left with the defendant for repairs, in which the question was whether the defendant’s lien for repairs was for seventy-five cents or for one dollar ánd fifty cents, the justice submitted to :the jury the following questions; Mrst. For how rnuch did the defendant agree to repair the wheel? Second. Did plaintiff tender to defendant, at the time he demanded the wheel, the sum of seventy-five cents? The jury rendered a verdict in the following language: “The. jury have decided that Mr. Smith, the plaintiff, pay Mr. Dinneen, the defendant,--75c. and take his wheel.” The plaintiff thereupon asked that the justice, send the jury back again to agree upon and -render “a verdict so as to leave no doubt as to whether it is for the plaintiff or defendant.”- The justice refused .the plaintiff’s request, and entered the verdict and rendered judgment, thereupon “in'favor of the plaintiff for the return of the wheel, and the "sum of §>13.95 costs of the action against the defendant.” Upon an appeal from a judgment of the County Court affirming the judgment of the Justice’s Court, Held, that it was impossible to tell from -the verdict of the jury what their conclusion was upon the question as to the" amount of the defendant’s lien, and that the judgment entered by the justice thereon should, therefore, be reversed. Appeal by the defendant, Timothy Dinneen, from a judgment of the County Court of Montgomery county in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 18th day of December, 1900,. upon an order of the county judge entered in said clerk’s office on the. 18th day of December,. 1900, affirming a judgment of a justice of the peace in favor of the plaintiff. The action is to replevy a wagon wheel in a Justice’s Court. The plaintiff having left the wheel with the defendant for repairs, a difference arose between them as to the sum which plaintiff was to-pay for the same. The plaintiff claimed it was seventy-five cents. The defendant claimed it was’one dollar and seventy-five cents, but agreed to take one dollar and fifty cents therefor. Plaintiff refused to give it, and, as " he testified, tendered seventy-five cents and demanded the wheel.. Defendant refused to surrender it, -claiming, a lien thereon for the one dollar and fifty, cents. Thereupon,.the plaintiff brought this action. Upon the trial before the justice and a jury the questions litigated were : Fvrst. For how much did the defendant agree to repair the wheel ? Second. Did plaintiff tender to defendant, at the time he demanded the wheel, the sum of seventy-five cents? The jury rendered a verdict in the following language: “ The jury have decided that Mr. Smith, the plaintiff, pay Mr. Dinneen, the defendant, 75c. and take his 'wheel.” The plaintiff thereupon asked that the justice send the jury back again to agree upon and render “ a verdict so as to leave no doubt as to whether it is for the plaintiff or defendant.” To this the defendant’s counsel objected, and asked that the verdict he entered as rendered. The justice refused the plaintiff’s request and entered such verdict and rendered judgment thereupon “in favor of the plaintiff for the return of the wheel, and the sum of $13.95 costs of the action against the defendant.” From the judgment so rendered the defendant appealed to the County Court, where the same was affirmed, and from that judgment of affirmance this appeal is taken. Frank JB. Towma/n, for the appellant.. Edward JR. Hall, for the respondent. [MAJORITY — Parker, P. J.:] Parker, P. J.: If the lien of the defendant for repairing the wheel was no more than seventy-five cents, he was not justified in detaining it until a larger sum was paid or tendered to him. If, however, his lien exceeded that sum, he had the right to so detain it, and this action could not be maintained. It is impossible to tell from the verdict of the .jury what their conclusion upon that question was. They may have concluded that the defendant had a lien for one dollar and fifty cents, but having in mind the fact that seventy-five cents had already been paid by the plaintiff into court for him, they intended that the plaintiff should pay seventy-five cents more as the balance of that lien ; or they may have thought that the whole of his lien was seventy-five cents, and that upon being paid that he should give up the wheel. The requirement that the plaintiff “ pay” to the defendant the sum of seventy-five cents would rather indicate that they had reached the former conclusion, inasmuch as the seventy-five cents then in court had already been paid, to him. Clearly, if such was their intention, the judgment entered by the justice is in direct opposition to the verdict. And even if they had reached the latter conclusion, the judgment as entered would hardly seem to accord with that idea. Such a verdict would seem to be to the effect that the defendant had a special property in the wheel to the extent of seventy-five cents, and the judgment, to properly protect his interest, should-have been in the form required by the latter paragraph of section 1730 of the Code of Civil Procedure. But the difficulty is that we" cannot tell from the verdict what the jury did intend. Did they'conclude that the defendant had ever unlawfully detained the wheel l Who did they conclude had the present right to its possession ? In short, had the- plaintiff the right to maintain the action or had he not Í From the record before us it is impossible to tell; and, hence, I am forced to the conclusion that the judgment must be reversed. (See Roehm v. Blanchard, 9 N. Y. Supp. 396.) All concurred, except Smith and Edwards, JJ., dissenting.- Judgment of the County Court and of the Justice’s reversed, with costs in all courts.