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133 N.Y.S. 443

Altmark v. Gelfand

Appellate Terms of the Supreme Court of New York

Decided January 25, 1912

Appellate Terms of the Supreme Court of New York · decided 1912-01-25

<p>1. Replevin (§ 105*)—Judgment.</p> <p>A judgment in replevin, which awarded the defendant damages on a counterclaim, but failed to award possession of the goods, is defective, as failing to dispose of all the issues raised.</p> <p>[Ed. Note.—For other cases, see Replevin, Dec. Dig. § 105.*]</p> <p>2. Appeal and Erbor (§ 1177*)—Disposition of Cause.</p> <p>While an appellate court may review the findings and judgment of a lower court, it cannot try the issues anew; and where, in replevin, the lower court did not award the possession of the goods, the case must be reversed for a new trial, where there is no stipulation permitting the proper judgment to be entered.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1177.*]</p>

Reversed and remanded conditionally · Decided 1912-01-25

PER CURIAM.

¶1The plaintiffs brought an action for replevin. The answer sets up as a defense and counterclaim that the defendant had a lien upon the goods in suit for services rendered in manufacturing the goods to the amount of $352.58, and asked that the com*444plaint be dismissed, with costs, and that the defendant have judgment upon his counterclaim.

¶2[1, 2] The trial justice gave judgment for the defendant for the sum of $352.58, with interest, but failed to give a judgment for either party_ awarding possession of the goods. All the issues raised by the pleadings and the proof should be decided at the trial, and while the appellate court may review the findings and judgment of the court below, it cannot try the issues anew. Bellock v. Weitzer, 144 App. Div. 292, 129 N. Y. Supp. 178.

¶3The judgment must therefore be reversed, and a new trial ordered, with costs to appellants to abide the event, unless the defendant will stipulate that the judgment be modified, by deducting the costs and providing that the possession of the goods be awarded to the plaintiffs, in which case the judgment will be affirmed, as modified, without costs.

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