majority">Noonan, J.

This is a replevin action The facts, except as to the ownership of the property, are undisputed. The plaintiff owned a farm and cattle, and the defendant was his tenant on shares, and also owned cattle, some of which he sold to the plaintiff. The fight is over the ownership of three cows. After the defendant had failed to give a bond for the return of the cows, the justice ordered them delivered to the plaintiff, who has had possession of them ever since.

At the trial the jury rendered a verdict that “ The three cows shall be returned to Schultz,” and thereupon the justice entered judgment in favor of Albert F. Schultz, defendant, and against Frank Wanamaker, plaintiff, for the - return of the three cows to Schultz, with fifteen dollars and ninety-five cents costs.

From this judgment the plaintiff has appealed upon questions of law only. He claims that the verdict was not in accordance with the weight of evidence, and that the judgment does not conform to the provisions of section 117 of the Justice Court Act, in that it does not fix the value of the chattels to be paid in case delivery thereof cannot be had.

*671There was a disputed question of fact in the case which the jury, from the evidence, could decide either way. The decision of the jury upon questions of fact must stand unless there is something to show that the jury did not decide the question fairly. The unbiased attitude of the jury is not even questioned by the plaintiff, and it cannot be said that the judgment, as a matter of law, is against the weight of evidence. Therefore, the court has no right to reverse the judgment on the first point urged by plaintiff.

Under section 451 of the Justice’s Court Act the appellate court has wide powers. It “ must render judgment according to the justice of the case without regard to technical errors or defects which do not affect the merits. It may affirm, modify or reverse the judgment of the justice in whole or in part * * A” The failure of the trial justice to enter judgment in the alternative does not affect the merits of the case. It is a mere irregularity. In Lewin v. Towbin, 31 Misc. Rep. 780, the court said: “ The judgment appealed from was not in the alternative, but it may be modified by providing that plaintiffs recover possession of the chattels in suit, and if delivery thereof cannot be made, then for the sum of eighty-one dollars, the value thereof, and as modified the judgment should be affirmed.”

In Wolf v. Farley, 40 N. Y. St. Repr. 808, 811, it was held that “ The omission to render judgment in the alternative is an irregularity, however, which may be cured by the appellate court by a modification of the judgment appealed from, and does not necessarily call for a reversal.”

The plaintiff testified at the trial, that the “ Market value at time cows were taken was $50.00 per head.” He stated the same value in his affidavit in replevin. Section 115 of the Justice Court Act provides the verdict or judgment, as in the instant case, must fix the value of the chattel at the time of trial. As there is no evidence showing any decrease in value of chattels, and as a condition once established is presumed to continue, I think the appellate court is justified in fixing the value of the cows at $50 each, or a total of $150.

The judgment may be modified by providing that the defendant recover possession of. the chattels in suit from plaintiff, and if delivery thereof cannot be made, then for the sum of $150, the value thereof, with $15.95 costs. The defendant is also awarded statutory costs on appeal.

Let an order be entered accordingly.

Judgment accordingly.

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