This action was brought to recover damages for taking and detaining chattels.
It appears- that the defendant Sommers recovered' a judgment *35against one Lucas Sinskie, the husband of the plaintiff. An execution was issued thereon and delivered to the defendant Brust, one of the marshals of the city of New York, who levied upon a horse, wagon and harness of the plaintiff, and took the property into his possession. Thereafter the plaintiff commenced an action in the Municipal Court to recover possession of the chattels, and such proceedings were had that judgment was entered awarding the possession to the plaintiff, without damages for the taking or detention of the same. It appears by the return of the marshal in the action of replevin that personal service of the summons was not made upon the defendant; that the defendant did not reside and could not be found in the county of Richmond, and that the service of the papers was made by delivering the same to Walter S. Scott, the defendant’s agent, in whose possession the property was found.
It was stipulated upon the trial of this action that the plaintiff “ commenced an action of replevin, and as a result of that action, judgment was taken by default on the 13th day of September, and the horse, wagon and harness delivered to her. As to the costs of the action, the expenses were to the marshal, counsel fees and the court fees, summons, etc., she-was compelled to pay out the sum of $56.60.”
The provisions of the Consolidation Act (Laws of 1882, chap. 410) relating to the procedure, the summons, or other process, service and execution of the same, appearances, practice, proceedings and judgment, were, by section 1369 of the Greater New York charter (Laws of 1897, chap. 378), made applicable to actions and proceedings in the Municipal Court. Section 1344 of the Consolidation Act provides that where the defendant does not appear, and the summons has not been personally served upon him, and a chattel or a part of a chattel, to recover which the action is brought, has been replevied, and the proceedings thereupon have been duly taken, as prescribed in this title, the justice must proceed to hear and determine the action, with respect to the chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied in like manner and with like effect as if the summons had been personally served.
I think that the effect of this section is to make the damages for taking or detaining the property a distinct and separate claim, where *36the defendant does not appear and the summons has- not been personally served.
.The Legislature did not make section 1730'of the Code of Civil Procedure applicable to Municipal Courts. But under that section a court has power to determine the plaintiff’s right to the possession of property which has been replevied only where the defendant neither appears in the action nor is served with process. In -such a case the defendant is not personally bound as to any fact determined in the action, so that he is precluded from denying it in a subsequent litigation concerning matters other than his right to the property affected by the judgment. (Schwinger v. Hickok, 53 N. Y. 280; Rigney v. Rigney, 127 id. 408.)
I am, however, of the opinion that the plaintiff was- not entitled to recover as damages the costs and expenses incurred in the action to recover the possession of the property. I do. not think the admission that the plaintiff was compelled to. pay out the sum of fifty-six dollars and sixty cents, sufficient -to justify the recovery of that sum as special damage. (Cook v. Gross, 60 App. Div. 446.)
It is urged that the court, having rendered a judgment dismissing the complaint as against the defendant Sommers, should have awarded costs to him. Judgment was not given against the plaintiff in the action. She was entitled to costs against one of the defendants, and the court, in the exercise of its discretion, had the power to decline to award costs to the other. (Code Civ. Proc. § 3229; Sawyer v. Gates, 14 N. Y. St. Repr. 236; Hodgkins v., Mead, 25 id. 937; Frazer v. Hunt, 18 Wkly. Dig. 390.)
It follows that the judgment must be modified by-deducting from it the sum of fifty-six dollars and sixty cents, and as modified affirmed, but without costs of this appeal.
Goodrich, P. J., Woodward, Hirschberg and Jerks, JJ., concurred.
Judgment of the Municipal Court modified by deducting from it the sum of fifty-six dollars and sixty cents, and as modified affirmed, without costs of this appeal.