#### LEACH v. WILLIAMS et al.

(Supreme Court, Appellate Division, Fourth Department.

December 15, 1896.)

Replevin—Judgment nor Defendant—Reversal.

The appellate division may reverse a judgment for defendant in replevin for the return of more property than the evidence shows plaintiff obtained under the writ, though there was no exception to the charge authorizing a verdict for that amount.

Appeal from trial term.

Replevin by Mary A. Leach against Norman Williams and another. From a judgment for defendants, plaintiff appeals.

Reversed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

Henderson & Wentworth, for appellant.

M. B. Jewell, for respondents.

FOLLETT, J.

This action, replevin, was begun October 27, 1893, to recover 50 tons of hay. November 2, 1893, the sheriff took from the defendants, by virtue of the writ, about 13 tons of hay. 102 tons 1,405 pounds of hay were raised on the farm, which were *575worth, as agreed, $8 per ton; total value, $821.62. The plaintiff claims to be the owner of all the hay. The defendant Williams asserts that he raised the hay on shares on the plaintiff’s farm, and owns one-half of it, 51 tons 702£ pounds, of the value of $410.81. Before any division was made the defendant Williams contracted to sell his share of the hay to defendant Peake, and began baling and delivering it to the purchaser. Before this action was begun 14 tons 1,050 pounds had been delivered to Peake, shipped away, and was not recovered by the plaintiff, which was worth, at $8 per ton, $116.60, which left 36 tons 1,552?,- pounds on the farm when the writ of replevin was served, of the value of $294.21. The defendants neglected to include the replevin papers in the judgment roll, as required by section 1717 of the Code of Civil Procedure. The court instructed the jury that, if they found the defendants were entitled to the hay, they should deduct 14 tons 1,150 pounds from 51 tons 702-¡- pounds, which leaves 36 tons and 1,552| pounds, and render in their favor a verdict for the return of that amount, and assess the value thereof at $8 per ton, which equals $294.21. The jury found that “the defendants are entitled to the possession of one-half of the hay raised on the farm; that the quantity is fifty-one tons—the amount already received, to wit, fourteen tons, making thirty-five tons; that the value thereof is $284, and the damages for detention $37.26.” A judgment was entered for 35-¿ tons.

The defendants were not entitled to recover of the plaintiff more ■hay than she received under her writ. Wells, Repl. § 499, and cases cited. What will be the effect of this judgment upon the rights of the defendants, and the rights of the sureties of the plaintiff on her undertaking given to obtain the writ? Will the sureties be liable for the damages awarded for hay not taken by the plaintiff under the writ, or will they be wholly absolved from liability on the undertaking? Section 1718 of the Code of Civil Procedure does not help the defendants’ case, for it simply provides that the plaintiff may recover all the property described in the complaint, though the sheriff was unable to take it on the writ; but it is no authority for the position that the defendants may recover of the plaintiff for property not taken by virtue of the writ.

The plaintiff took two exceptions only to the charge, to wit:

> “(1) I except to your honor’s charge that the jury may find a verdict In any event against the plaintiff for the defendants, and also the charge as to the form of the verdict. My exception is that the evidence does not warrant the charge that the jury may find a verdict for the defendants in any event. (2) I *except to*the charge that the defendant is entitled to any hay previous to a division, or any opportunity for it.”

These exceptions did not call the attention of the court to the point that the defendants were not entitled to a verdict for the return of more hay than the plaintiff actually recovered by virtue of her writ. However, it is a well-established rule of law that, if a case has been submitted to and decided by the jury upon a wholly erroneous theory, this court may grant a new trial, though there is no exception to such submission. Standard Oil Co. v. Ama*576zon Ins. Co., 79 N. Y. 506; Roberts v. Tobias, 120 N. Y. 1, 23 N. E. 1105; Whittaker v. Canal Co., 49 Hun, 400, 3 N. Y. Supp. 576.

Judgment and order reversed, and a new trial ordered, with costs to abide the event, unless the defendants stipulate to reduce the recovery to $104.06, in which event the judgment and order, as so modified, are affirmed, without costs to either party. All concur^