Cary Manufacturing Co. v. Malone

Appellate Division of the Supreme Court of New York

Cary Manufacturing Co. v. Malone

131 A.D. 287, 115 N.Y.S. 632, 1909 N.Y. App. Div. LEXIS 799

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 12, 1909

StatusPublished

Cited by1 cases

This text of 131 A.D. 287 (Cary Manufacturing Co. v. Malone) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cary Manufacturing Co. v. Malone, 131 A.D. 287, 115 N.Y.S. 632, 1909 N.Y. App. Div. LEXIS 799 (N.Y. Ct. App. 1909).

Pincite

Opinion

Rich, J.;

This appeal is from a judgment in favor of the defendant in a replevin action. The property which was the subject of the action consisted of a quantity of wire and various tools and machinery used in rolling iron. The title to this property was in dispute and ■the question of the ownership and right to the possession of the various articles was- litigated upon the trial. Defendant claimed a [288]*288special interest in the machinery, and after a careful review of the evidence I am inclined to the view that if he had any legal claim to the property it was confined to this interest, though the claims of the parties were of such a nature as to require the verdict of the jury, to respond to the issues presented.

The learned justice presiding at the trial instructed the jury that they must fix the value, of the property taken, and it Was their duty to do this. (Code Civ. Proc. § 1726.) The instruction was ignored, however, and a general verdict rendered in favor of the defendant, upon which a judgment has been entered adjudging that the defendant recover the sum of $800.28, with costs, and that the defendant recover of the plaintiff the possession of the personal property described in the complaint. There is no way of ascertaining what the. verdict represents. It should' have shown whether defendant was a general or special owner, and if it was intended as a general verdict in favor of the defendant on the ground that he was the owner, it was against, the weight of the evidence. The verdict was irregular, and the refusal to grant plaintiff’s motion for a new trial was error.

The judgment and order must, therefore, be reversed and. a new trial granted, costs to abide the final award of costs.

Woodward, Jenks and Gaynor, JJ., concurred; Miller, J., voted to reverse on the ground that the verdict is against the weight of evidence.

judgment and order reversed and new trial granted, costs to abide the final award of costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Rich, J.;

This appeal is from a judgment in favor of the defendant in a replevin action. The property which was the subject of the action consisted of a quantity of wire and various tools and machinery used in rolling iron. The title to this property was in dispute and ■the question of the ownership and right to the possession of the various articles was- litigated upon the trial. Defendant claimed a [288]*288special interest in the machinery, and after a careful review of the evidence I am inclined to the view that if he had any legal claim to the property it was confined to this interest, though the claims of the parties were of such a nature as to require the verdict of the jury, to respond to the issues presented.

The learned justice presiding at the trial instructed the jury that they must fix the value, of the property taken, and it Was their duty to do this. (Code Civ. Proc. § 1726.) The instruction was ignored, however, and a general verdict rendered in favor of the defendant, upon which a judgment has been entered adjudging that the defendant recover the sum of $800.28, with costs, and that the defendant recover of the plaintiff the possession of the personal property described in the complaint. There is no way of ascertaining what the. verdict represents. It should' have shown whether defendant was a general or special owner, and if it was intended as a general verdict in favor of the defendant on the ground that he was the owner, it was against, the weight of the evidence. The verdict was irregular, and the refusal to grant plaintiff’s motion for a new trial was error.

The judgment and order must, therefore, be reversed and. a new trial granted, costs to abide the final award of costs.

Woodward, Jenks and Gaynor, JJ., concurred; Miller, J., voted to reverse on the ground that the verdict is against the weight of evidence.

judgment and order reversed and new trial granted, costs to abide the final award of costs.

Cite This Page — Counsel Stack

Bluebook (online)

131 A.D. 287, 115 N.Y.S. 632, 1909 N.Y. App. Div. LEXIS 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cary-manufacturing-co-v-malone-nyappdiv-1909.

Opinion

Related

Cite This Page — Counsel Stack