#### Louis C. Gerken, Plaintiff, *v.*Jacob Ruppert, Defendant.

(City Court of New York, General Term,

December, 1900.)

Malicious prosecution — Damages — Bes adjudicata.

After the plaintiff had paid the defendant a chattel mortgage the latter, without cause, replevied the goods, and, in the replevin action, the plaintiff recovered them, with six cents damages and costs. The defendant paid that judgment. The plaintiff then began the present' action for malicious prosecution and also demanded damages for the wrongful taking of the goods.

Held that the demand for damages for the taking of the goods was *res adjudicata.*

That the action for malicious prosecution was maintainable, and that, as the plaintiff had proved that he paid an attorney a fee to defend the replevin action, a dismissal of the complaint was erroneous.

Motion by the plaintiff, Louis G. Gerlten, for a new trial on exceptions ordered to be heard, in the first instance, at General Term, after a trial, on the 15th day of February, 1900, where a verdict was directed in favor of the defendant; and the exceptions were ordered to be heard at the General Term in the first instance.

Balph H. Baphael, for plaintiff.

Ashbel P. Fitch, for defendant.

Schuchman, J.

The complaint of the plaintiff alleges that, on or about April 5, 1895, the plaintiff was the owner of a certain saloon or retail liquor business conducted in the city of Eew York; that, for some time previous to April 5, 1895, the above-named defendant was the owner of a certain chattel mortgage, covering fixtures and various articles of merchandise in said store, owned by the plaintiff, and tbait on said day, April 5, 1895, said mortgage was duly paid, and the defendant agreed in writing to give a satisfaction-piece thereof; that, notwithstanding said agreement to satisfy and discharge said mortgage as aforesaid, the defendant, well knowing he had no just or probable cause of action against the plaintiff, wrongfully and maliciously commenced a replevin suit against this plaintiff, claiming the goods which said chattel mortgage had covered, and under and by virtue of said mortgage, *383and that, on or about April 20, 1895, the defendant entered the store of plaintiff and wrongfully, unlawfully and maliciously took and earned away said goods. That plaintiff had appeared in said suit and defended the same, and the issue raised therein, was duly tried before a jury in the ¡New York Supreme Court for ¡New York county, and that a verdict was duly rendered therein in favor of the defendant therein for the value of said goods. That this plaintiff has suffered damages by the wrongful and malicious institution of said replevin suit, and the wrongful, unlawful and malicious taking of said goods, in the sum of $1,637.50, for which sum the plaintiff asks judgment.

The proof shows that said replevin suit was tried on June 18, 1897, before Mr. Justice McAdam and a jury, and during the course of the trial the defendant therein withdrew the claim for damages in the sum of $165. A verdict was rendered on June 18, 1897, for the defendant therein, for the return of the property claimed, and assessing the value thereof at $350, with six cents damages. The defendant therein thereupon entered judgment for the said sum of $350, the further sum of six cents damages, and $165.47 costs. Thereafter the defendant herein paid said judgment, which was duly satisfied of record. Thereafter this action was brought for the alleged wrongful and malicious institution of the said replevin action, and also for the alleged unlawful and malicious taking of the said chattels. The plaintiff herein having, in his answer in the replevin action, demanded a return of the chattels replevied or the value thereof and damages for the detention thereof, and the verdict and judgment entered having awarded him the return of the chattels replevied or the value, together with six cents, his damages, another action for the recovery of damages by reason of the taking and detention of the chattels may not be maintained, and, in this action, the plaintiff will be precluded from again litigating a question decided in the replevin action. The cause of action, however, that is set forth in the complaint is for a malicious prosecution (although damages are also claimed for the taking of the chattels), and the plaintiff is entitled to maintain the action and recover the damages he may have sustained by reason of the malicious prosecution, without probable cause, of an unfounded proceeding; and, if the jury were satisfied that the plaintiff had proven a malicious prosecution on the part of the defendant, then at least one item of damage was *384shown, viz.: the fee of $150 paid the attorney for defending the action.

Upon the pleadings and evidence it was the duty of the trial justice to submit the case to the jury, and, having refused to do so, it follows thát the plaintiff’s exceptions must be sustained and a new trial ordered, with costs to the plaintiff to abide the event.

McCarthy and O’Dwyer, JJ., concur.

Exceptions sustained and new trial ordered, with costs to plaintiff to abide event.