The plaintiff brought an action of replevin — that is, an action to recover the possession of a canal boat— claiming title under a bill of sale from Chauncey Bascom and Oliver Beckwith.
Defence: That the defendant Jones, as a constable, and Enos acting in his aid, took the property by virtue of an attachment from a justice’s court, sued out by Enos as a creditor of Bascom; and that the sale by the latter to the plaintiff was fraudulent as to the creditors.
Enos obtained judgment against Bascom in the attachment suit; and upon the trial of this cause before a referee, the fraud being established to the satisfaction of the referee, the latter reported in favor of the defendants, and directed a general judgment in their favor for the amount of the judgment obtained by Enos against Bascom, with costs of suit, which was entered accordingly.
Held, that the judgment thus entered was erroneous; that a defendant who succeeds in an action to. recover the possession of personal property, when the property has been delivered to the plaintiff, must, under sec. 277 of the Code, take judgment in the alternative, for a return of the property, or for the value thereof as assessed, in case a return cannot be had; this section having deprived defendants in such actions of the election given them by the Revised Statutes, to take judgment either for a return, or for the value of the property, at their option.
(S. C., 9 N. Y. 470.)