The complaint in this action alleges that the plaintiff is entitled to the possession, by a property therein, of 172 bales of cotton; the facts upon which said special property depended being that the defendant had duly issued to one Stone its warehouse receipt, in and by which the defendant certified that it had received on storage at its warehouse on account of. said Stone the 172 bales of cotton, and in and by which it agreed to hold the same subject to the order of the said Stone; that thereafter the said Stone duly indorsed the said warehouse receipt in writing in blank, and duly assigned, transferred, and delivered the said warehouse receipt to the plaintiff, who thereupon loaned and advanced to the said Stone the sum of $5,000, and received and accepted said warehouse receipt as security for said loan; that before the commencement of the action the plaintiff had duly demanded the cotton from the defendant, and offered to pay, and duly tendered to the defendant the amount necessary to pay, the storage and other charges thereon, and offered to surrender the said warehouse receipt, but the said defendant refused, and yet refuses, to deliver said cotton to the plaintiff, to its damage in the sum of $6,983.20, the value of the said cotton. Wherefore the plaintiff demands judgment against the defendant for the recovery of the said cotton, with $1,000 damages for the detention of the same, or, in case a delivery thereof cannot be had, for the value thereof, with damages as aforesaid. The defendant answered the complaint, and the case thereupon came on for trial, which resulted in a verdict for the defendant, upon which judgment was entered. Upon an appeal from that judgment the general term of the supreme court reversed the judgment and ordered a new trial. 26 N. Y. Supp. 1055. Thereafter the defendant appealed from the said judgment of the general term to the court of appeals, and in the notice of appeal gave the usual stipulation for judgment absolute in the event of the affirmance of the order appealed from. Thereafter the said appeal was heard in the court of appeals, that court affirming the order so appealed from, and directing judgment absolute for the plaintiff on the said stipulation. 43 N. E. 72. The remittitur from the court of appeals “did order and adjudge that the order of the general term of the supreme court appealed from herein to this court be, and the same is hereby, affirmed, and judgment absolute ordered against the defendant on the stipulation, with costs.” Upon that remittitur the judgment of the court of appeals was made the judgment of the supreme court, and said order “adjudged that the plaintiff do recover of the defendant the damages sustained.by it on account of the cause of action alleged in the complaint, and that it do recover also of the defendant the possession of the personal property described in the complaint,-to wit, one hundred and fifty-one bales of cotton marked ‘S. Y. E.,’ and twenty-one bales of cotton marked ‘O. U. V.,’ and damages for the detention thereof, or damages for the value of the property claimed in case a delivery of said property cannot be had, and also damages for the detention of said property, together with costs, to be taxed by the clerk”; and the said order further directed *546an assessment by a jury of- the damages directed to be recovered by the plaintiff at the trial term of the court. The action was brought to recover the possession "of the property covered by the warehouse receipt which had been indorsed to the plaintiff, or for its value; and by the judgment of the court of appeals, subsequently made the judgment of this court, judgment was ordered in that action upon the stipulation against the defendant. The form of that judgment was settled on application to the court, and it was there provided that the plaintiff was to recover of the defendant the possession of the personal property described in the complaint, or its value in case a delivery of said property could not be had, and also damages for its detention. The assessment ordered was not to determine as to how much money the plaintiff would be entitled to recover upon a new trial of the action, but was simply to assess the value of the property and the damages sustained in consequence of its detention, all other questions in the case having-been eliminated by the judgment of the court of appeals and the judgment of the supreme court upon such judgment. The trial judge before whom this assessment was had, had nothing to do with any equities that existed between the parties; nor could he consider the question as to whether or not, upon the defendant’s proving that it actually had none of this cotton on storage at the time this warehouse receipt was issued, it would defeat the plaintiff’s claim to any amount. He had simply, under the order directing the assessment of damages, to determine the value of the cotton and the amount of the damages sustained in consequence of its detention; and that, as we understand it, was the basis upon which the learned judge proceeded. Upon the complaint in this action the position of the parties would appear to be that the defendant had 172 bales of cotton on storage for Stone and which belonged to Stone; that as security for a loan Stone had transferred the title to that 172 bales of cotton to the plaintiff, in whom, by such transfer, the legal title vested. As between the plaintiff and the defendant, the plaintiff was entitled to the possession of the 172 bales of cotton upon paying the charges of the defendant. To enforce that right to the possession of this cotton this action was brought.
In this action for the possession of the cotton final judgment is ordered for the plaintiff, i. e. a judgment based upon the facts alleged in the complaint. If, as a matter of fact, the defendant did not have the cotton in its warehouse belonging to Stone, that was a matter of defense for the defendant to allege and prove. The cause of action is to recover the possession of the cotton or its value, and upon that cause of action the plaintiff is entitled to judgment absolute. Being entitled to recover the possession of the cotton, the title to which was transferred by Stone to the plaintiff, whether or not Stone owed to the plaintiff the total amount that it had recovered from the defendant, or whether the plaintiff would be obliged to account to Stone for any excess over and above the amount it was entitled to retain as between the plaintiff and Stone, was a matter of no concern to the defendant upon the pleadings. *547This principle was established in the case of Bank v. Pierce, 137 X. Y. 444, 33 X. E. 557. There the defendant made his promissory note to the order of the Bates Company, which company indorsed it to the plaintiff, the latter discounting it for Bates. Subsequently the Bates Company failed, but paid to the plaintiff on account of the note over 73 per cent. The bank sued Pierce,- the maker of the note, for the full amount, and recovered judgment, and that judgment was affirmed, notwithstanding the fact that the Bates Company, as indorser, had paid to the plaintiff over 73 per cent, of the amount of the note. The judgment of the court of appeals was put upon the ground that the defendant, the maker of the note, owed the money upon it, and that, this note having been transferred by the payee to the bank, the whole title vested in the bank, and, as legal owner of the note, it was entitled to recover from the maker the amount that the maker owed upon the note. The right to this recovery was entirely unaffected by the fact that, as between the plaintiff and the indorser, the indorser had, on account of its liability to the bank as indorser, paid to the bank'upwards of 73 per cent, of the amount due on the note. The same principle applies in this case. Upon the facts alleged in the complaint, the plaintiff was entitled to the 172 bales of cotton. Judgment was ordered for the plaintiff upon that cause of action. If the defendant had had in its possession the 172 bales of cotton, the plaintiff would have been entitled to have such cotton delivered to it, and whether or not there would then have been any balance due to Stone is entirely immaterial; but in such an action the plaintiff was also entitled to have the value of the cotton, which it was adjudged was the property of the plaintiff, and should be delivered to it, ascertained, so that in the event of failure to obtain the possession of the identical cotton, to which it was adjudged the plaintiff was entitled, the plaintiff could recover a money judgment for the value of the cotton in lieu of its production. That is just what this assessment of damages did. The assessment having been made, the final judgment to which the plaintiff would be entitled would be a judgment for the delivery to it of the cotton, or, in the event of its nondelivery, to a judgment against the defendant for the amount found to be its value, together with the amount of the damages caused by the detention of the cotton, and to have execution thereof.
We have not discussed the question as to whether the procedure adopted by the defendant was correct. We think, however, that the only method by which an error upon an assessment of damages could be corrected is by a motion at special term" to set aside the assessment and order a new one to be had.
As we think that no error was committed upon the assessment in question, the order below was right, and should be affirmed, with $10 costs and disbursements. All concur.