In the prevailing opinion it is assumed that this is an action in replevin, but the complaint contains allegations which are appropriate to an action for conversion equally as well as to one for replevin. In addition to the allegations of ownership of the watch by the plaintiff and of the wrongful detention thereof by the defendant after demand therefor by the plaintiff, it is alleged that the “ watch has been sold and disposed of by the defendant with the intent to deprive the plaintiff of the use and benefit thereof.” The proof on the trial supported this, allegation. It was shown that the defendant had taken the watch apart and disposed of the case to a dealer in old gold and that the works produced upon the trial were not the ones taken from the stolen watch. In the prayer for relief judgment is demanded for the possession of the watch, or for the sum of seventy-five dollars damages in case possession cannot be given to the plaintiff. The clerk has certified that the verdict was for the plaintiff for thirty-five dollars damages only: Such a verdict was appropriate to an action for conversion and not to an action for replevin. The watch had not been replevied, and the verdict did not award it to the plaintiff, or fix its value at the time of the trial, as it might have done under section 1726 of the Code of Civil Procedure. The jury by their verdict simply fixed the damages of the plaintiff as they were authorized to do by that section. The jury did not follow the instructions of the court to find the value of the watch at the time of the trial, and damages, if they found for the plaintiff, but they found for the plaintiff for a specific sum as damages. No motion was made or direction given to correct the verdict or to send the case back to the jury for further consideration. The verdict cannot be regarded as a special verdict under which the court might determine which party was entitled to judgment thereupon. Nevertheless, after the jury were discharged, there has. apparently been an attempt, on an ex parte application to the justice who presided at the trial, to make the judgment accord with what the plaintiff thinks the verdict ought to have been in an action for replevin. I know of no warrant for such practice under the Code of Civil Procedure or any of the authorities.
It is urged that authority is found for the practice in sections 1189 and 1730 of the Code of Civil Procedure. Section 1189 pro*60vides that “ upon the application of the party in whose favor a general verdict is rendered, the clerk must enter judgment in conformity to the verdict, unless a different direction is given by the court, or it is otherwise specially prescribed by law.” It will not be .assumed that under this provision, in an action at law, the court may direct the entry of a judgment not in conformity with the verdict, but it is urged that under section 1730 it is prescribed that final judgments in actions to recover a chattel must be in the alternative and that the form of the judgment entered here was required by that section. It is true that by that.section it is provided that in an action to recover a chattel “final judgment for the plaintiff must award to him possession of the chattel recovered by him with his damages, if any,” and that the same section provides that where, as here, the “ chattel recovered was not replevied * * * the final judgment must also award to the plaintiff the sum fixed as the value thereof, to be paid by the defendant, if possession thereof is not delivered to the plaintiff.” But that section should not bring the plaintiff relief here, for he has not “ recovered ” the watch or had its possession awarded to him by the verdict of the jury. The clause in the judgment directing that “pursuant to the verdict rendered ” the plaintiff “ recover from the defendant ” the watch in question should be given no force as a recovery in the face of the verdict, which was for damages only and which did not award the possession of the watch to the plaintiff. Yet in the decision agreed to by a majority of the court, approval is given to a judgment not in conformity with the verdict, and which contains provisions not in any sense founded upon it. I cannot yield my assent to that method of procedure.
If the plaintiff was entitled to have the jury charged as requested by his attorney in the statement of facts, and there was error in the court’s refusal to charge the request, conformity to well-established procedure should require, in order to correct that error, an appeal from the judgment when it is made to conform with the verdict rendered. (Conklin v. McCauley, 41 App. Div. 453.)
Regarded as an action for conversion, the verdict being for less than fifty dollars damages, the plaintiff is not entitled to costs (McLain v. Mathushek Piano Mfg. Co., 54 App. Div. 126), and the provision awarding costs to the plaintiff should be stricken out.
*61The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to correct the judgment to conform to the verdict and to. strike out the provision awarding costs to the plaintiff granted, without costs.
Order affirmed, with ten dollars costs and disbursements.