#### Corn Exchange Bank *v.*Blye.

*(Supreme Court, General Term, Second Department.*

May 12, 1890.)

Replevin—Damages fob Depreciation Pending Appeal.

Where a judgment in favor of plaintiff in replevin for coupon bonds is affirmed by the court of appeals, and defendant thereupon returns the bonds, plaintiff may sue for their depreciation in market value pending the appeal; Code Civil Proc. N. Y. § 1722, giving plaintiff in replevin, who recovers a chattel depreciated in value while in defendant’s possession, a right of action for such depreciation, if it happened under such circumstances that defendant is liable therefor.

Appeal from special term, Orange county.

Action of the Corn Exchange Bank against Alphonso W. Blye, receiver of the Middletown National Bank. The complaint alleges that defendant obtained possession of and wrongfully refused to deliver on demand plaintiffs chattels, consisting of bonds, with interest coupons attached, of the value of $23,000; that plaintiff thereupon brought an action therefor, which was tried November 5, 1885, and resulted in a judgment in his favor for the chattels or their value, $23,000, together with damages for their detention down to the time of trial; that defendant took successive appeals to the general term and to the court of appeals, where said judgment was in all things duly affirmed; that defendant refused to deliver said chattels to plaintiff till after the affirmance of the judgment by the court of appeals; and that during defendant’s wrongful detention, and since the trial of the former action, the same have become damaged and depreciated in value in the sum of $20,000. Defendant demurred to the complaint for insufficiency, his demurrer was overruled, and he now appeals. For reports of the replevin action, see 7 N. *Y.*Supp. 434, and 23 N. E. Rep. 805.

Argued before Van Brunt, P. J., and Dykman and Pratt, JJ.

*William Vanamee,*for appellant. *L. A. Gould,*for respondent.

Barnard, P. J.

The action was brought to obtain possession of a chattel by the owner against one who without right claimed possession thereof. The plaintiff, in 1885, recovered a judgment, finding the title and the right to immediate possession to be in the plaintiff. The judgment, as required by law, fixed the then value of the property so that, if the plaintiff could not have the specific property, the value might be collected in lieu thereof. It was then competent for the wrong-doer to return the property, but he did not do so. An appeal was brought by him to the court of appeals, when it was heard and decided in 1889, some four years after the trial and judgment. Pendingthis appeal, the property fell in value nearly or quite $20,000. The defendant, upon the affirmance of the judgment, released the identical property, as he *152was permitted by the judgment appealed from and affirmed by the court of appeals. The question presented by the demurrer is whether an action will lie for the depreciation by the owner against the claimant. The judgment only settled the title. The plaintiff: owned the chattel, both before and after the judgment of the trial court. No damages for the future detention could be included in the judgment, and, if the appeal continued an unlawful possession without remedy, the plaintiff will not have any complete remedy for the invasion of his property rights. The cases cited, that an action for damages for a wrong cannot be split up, do not seem to apply to a case like this. If the action had been one for a conversion only, when the judgment would make a complete restitution in damages, no action would lie for a further increase in value of the property pending appeal. The judgment and interest upon it would be collectible at all events. The result is not so in this action. If the contest had been about a package of bank-bills, no judgment in replevin could include the interest, based upon a prospective appeal, nor a depreciation pending such appeal. This action must be supported, or a wrong will go unredressed. Section 1722 of the Code was designed to give this remedy. It provides that, when depreciation in value happens while the chattel is in possession of the defendant, the plaintiff can have an action for the depreciation, if it happened under such circumstances that the plaintiff might recover for the injury or depreciation of the defendant therefor. For the damages up to the trial he has recovered. The detention after the trial is a new offense, and wholly without remedy, unless the plaintiff can treat the additional detention as a new cause of action, under this section, and also under section 1691 of the Code, which rescinds the right of action of a defeated plaintiff in replevin to recover damages, for the detention, unless the judgment was given against him on the merits. The value of the use during the time of the illegal detention is the proper measure of damages in replevin of a personal chattel when it has a usable value. *Allen*v. *Fox,*51 N. Y. 562. This case referred to a horse. How could the usable value of the horse be recovered, unless by this action? The judgment sustaining the complaint should therefore be affirmed, with costs. All concur..