Hall v. Bassler

96 A.D. 96, 88 N.Y.S. 1039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1904
• Status: Published

Opinion

Chase, J.:

The defendant contends that the facts stated in the complaint in the first action constitute a single cause of action, and that the new trial granted by the County Court was only for .the purpose of assessing the damages in that action, and that 'as the plaintiff failed to appear before the justice of the peace pursuant to the order of thei County Court, he must either excuse his default and be heard in that action, or be barred from further remedy.

The plaintiff insists that the order of the County Court on fhe appeal from the first judgment was a severance of the single cause of action in which severance the defendant has acquiesced, and that the judgment of nonsuit before the justice of the peace is not in itself a bar to &' further action. Assuming, without deciding, that the plaintiff is right ■ in his contention, it was necessary for him in this action to prove the allegations of his complaint. The record does not show that the judgment in the former action was an adjudication ■ that the plaintiff had demanded the possession of thó bicycle, at least at any particular timé. It did adjudicate that the plaintiff was entitled to the possession of the bicycle, but so far as it was an adjudication as to the detention thei’éof by the defendant it was an adjudication that the defendant had not detained the same to the plaintiff’s damage. The Justice’s Court in rendering the first judgment must have found either that the defendant had not detained the bicycle for any period of time after demand, or that his detention thereof had not damaged the plaintiff. The defendant came rightfully into the possession of the bicycle and it was necessary for the plaintiff before he could recover to show in this action that the defendant had detained the bicycle after a demand therefor.

The plaintiff for some reason that is not disclosed omitted to prove a demand for the bicycle. The judgment for damages for the detention of the bicycle is for an amount more than twice the assessed value of the bicycle detained, and it only could have been rendered on proof of the detention of the bicycle for a considerable period of time.

The evidence before the justice of the peace is not sufficient to sustain the judgment, and the judgment of the County Court reversing the judgment of the Justice’s Court should be affirmed, with costs.

Judgment unanimously affirmed, with costs.