Popkin v. Subin — 62 N.Y.S. 480

Majority

p. 480

POPKIN v SUBIN.

(Supreme Court, Appellate Term.

February 8, 1900.)

Headnote

Conversión—Replevin.

Where plaintiff in conversion showed that defendant, city marshal, had seized goods under a requisition in replevin, which were not named therein nor in the judgment, he had proved a cause of action, and it was error to dismiss the complaint.

Appeal from municipal court, borough of Manhattan, Fourth district.

Action by Isaac Popkin against Jacob Subin. From a judgment dismissing the complaint, plaintiff appeals.

Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

A. H. Sarasohn, for appellant.

Moses Feltenstein, for respondent.

When the plaintiff rested he had proved a prima facie case in conversion, and it was, therefore, error to dismiss the complaint. His evidence tended to show that the defend ant, a city marshal, seized goods not embraced in a requisition in replevin or in the judgment entered in the replevin action. The plaintiff thus proved a cause of action against the marshal individually for the value of those items which were not and could not have been litigated in the prior suit. That concerned merely ilie title to the articles enumerated in the requisition. As no process in that action could protect the marshal for taking property the title to which was not then litigated, it was incumbent on him to controvert the plaintiff’s proof. The judgment should be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.