Appellate Term, Second Department, May, 1920. [Vol. 112. did not apply the proper rule of damages, for if, on a new trial hereby ordered, it appears that plaintiff has no right at all to the possession of the chattels, she will be entitled to nominal damages only. APPEAL from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, in favor of the plaintiff for the sum of $1,106.25. William J. Griffin (George A. Baker, of counsel), for appellant. Seligsberg, Lewis & Strouse (Walter N. Seligsberg and Jay Leo Rothschild, of counsel), for respondent. KELBY, J. The action is brought against the defendant as surety in an undertaking on replevin. The undertaking in suit was made and filed in a replevin action brought by one Samuel J. Budracco (the husband of the present plaintiff) against the said Clotilde Rice Budracco and a co-defendant in the replevin action named Cora M. Rice. The replevin action was brought to recover certain household chattels which the plaintiff in replevin alleged were wrongfully detained by the two defendants in the replevin action. The allegations in the complaint in replevin were commingled and connected statements of plaintiff's title and right of possession and wrongful withholding of possession by the defendants. Clotilde Budracco. for answer in the replevin action, put in a general denial, and asked for a dismissal of the complaint. No demand for the return of the chattels was made in the answer, nor was any written notice of demand for the return of the chattels made as prescribed by the Code on behalf of Clotilde Budracco. The defendant Rice in replevin admitted that she was, until the commencement of the replevin action, in possession of the chattels, and pleaded a general denial as to the other facts Misc.] Appellate Term, Second Department, May, 1920. set out in the complaint. And, for a first defense and counterclaim, alleged that she had furnished necessaries to Clotilde Budracco, consisting of food, shelter and other necessaries, of the reasonable value of $1,503. And, for a second defense and counterclaim, alleged that she was the proprietor of a boardinghouse in Brooklyn; that she boarded the plaintiff in replevin for one period of time, and the plaintiff in replevin and his wife for another period of time; that the reasonable value of the board and articles furnished was $810, on account of which $678 had been paid, leaving the sum of $132 due and owing. The said answer then set out that the chattels described in the complaint in replevin were brought to the house of the said Cora M. Rice by Samuel J. Budracco, and that the chattels were detained by the defendant Rice under and by virtue of her lien for food and lodging. In legal effect, this set up a boarding-house keeper's lien in the sum of $132. The action in replevin came to trial; the plaintiff in replevin did not appear; the defendant Rice proved and obtained a judgment on the counterclaim amounting to $1,000; and the clerk entered up judgment on said day. On the next day the court filed a memorandum stating that the defendant (Rice) was entitled to the possession of the chattels in question, and which were valued by the judge at $1,000. Ten days later the judge filed another memorandum stating, in effect, that the plaintiff not being ready, the defendant Clotilde Budracco was entitled to a dismissal of the action. From the foregoing, it must be conceded that the plaintiff in replevin did not prosecute the action. The undertaking sued upon contained the conditions prescribed by the Code of Civil Procedure (§ 1699), and was for the prosecution of the action; for the return of the chattels to the defendants if possession Appellate Term, Second Department, May, 1920. [Vol. 112. is adjudged to them, or if the action abates or is discontinued before the chattel is returned to the defendant, and for the payment to the defendants of any sum which the judge awards to them. These conditions of the bond are independent, and liability accrues whenever there is a breach of one or more of them. The condition of the replevin bond to prosecute the action is broken where the plaintiff suffers a voluntary or involuntary non-suit or dismissal. In the case at bar, we are concerned only with the legal results of the conceded fact that the plaintiff in replevin did not prosecute the action. It is urged that an action on the undertaking cannot be maintained unless the defendant in replevin demanded a return of the chattels, and, further, that an execution must be issued as prescribed by section 1733 of the Code of Civil Procedure. 66 In the case of Rogers v. United States Fidelity & Guarantee Co., 84 N. Y. Supp. 203, the plaintiff in replevin failed to appear on the trial, and it appeared that the trial judge marked the summons in that action Judgment for defendant." This memorandum just mentioned was not signed by the trial judge, nor was any judgment ever rendered in that action in favor of the defendant either for costs or entitling them to a return of the property, or for its value in case a return could not be had. The court there said: "The plaintiff was bound to prosecute the action. He could not use the process of the court to obtain possession of the property of the defendants, and then, by failure to appear, discharge the liability of his surety and retain the property, for we must assume that the marshal did his duty, and, upon failure of the defendants in the replevin action to file an undertaking for a return of the property, delivered it to the Misc.] Appellate Term, Second Department, May, 1920. plaintiff, as required by section 111, Municipal Court Act and section 1706, Code Civ. Proc. "The fact that the defendants in the replevin action did not obtain the judgment which they might have been entitled to does not aid the plaintiff therein, nor relieve his surety from liability. 66 Neither does section 1733, Code Civ. Proc., aid the defendant herein. That section provides that, when a ‘final judgment has been rendered, no action can be instituted on the undertaking until after the return, wholly or partly satisfied, of an execution, etc. A final judgment is one which determines the rights of the parties. Morris v. Morange, 38 N. Y. 172. As we have seen, there was no judgment at all rendered in the case at bar." The court, in that action, confirmed a judgment in favor of the plaintiff against the defendant. Section 69 of the Municipal Court Code provides as follows: "Where a chattel has been replevied and the defendant has not required the return thereof pending the action, he may in his answer demand judgment for the return thereof, either with or without damages for the taking, withholding or detention." And, by section 63 of the same act, a defendant in replevin may file a notice that he requires the return. of the chattel and must file with said notice affidavits setting up certain facts, as therein provided. At common law the only relief obtained in a replevin action was an adjudication as to the right of possession of the chattel at the time of the commencement of the action. Subsequently, by statute both in the Code of Civil Procedure and in the Municipal Court Code, opportunity was given for a defendant to set up a claim of title to the chattel in question, so that there might, at the election of the defendant, be an adjudication in his favor. The defendant in replevin, however, Appellate Term, Second Department, May, 1920. [Vol. 112. is not compelled to avail himself of this new remedy. He may decline to make said demand for a return of the chattel, and, if he prevail in any way, he is not estopped from commencing a subsequent action. A demand for a return thereof is not a condition precedent to the commencement of an action against the surety on an undertaking in replevin. See Rushbrook v. Jerge, 74 Misc. Rep. 43; Verra v. Costantino, 84 N. Y. Supp. 222. 999 are and The case of Bown v. Weppner, 62 Hun, 579, may be distinguished from the case at bar. In that case the defendant in replevin, in addition to not requiring the return of the property, set up affirmatively "that the property was in the custody of the sheriff of Monroe county by virtue of the levy of an execution;' that the sheriff of the county * should be the party defendant in this action in the place of this defendant; that all rights or claims of this defendant subject to the levy of the said sheriff, this defendant ought not to be sued on account of any or all allegations set forth in the complaint.' In addition to this, there was a specific denial that defendant was in possession. The plaintiff in that action then went into court and voluntarily withdrew the action. It is not clear from this report who were the parties impleaded with the sureties, the title of the action simply being Bown v. Weppner and another, appellants, impleaded with another, defendant. The court later states, in its opinion, that the action was prosecuted to final judgment. In any event, the covenant of the bond there sued on was one relating to an abatement or discontinuance of the action before the return of the property, and the court there held that the "return of the property" referred to was a return in response either to a notice from the defendant requiring the possession of the property or in pur |