Popkin v. Subin

Appellate Terms of the Supreme Court of New York

Popkin v. Subin

30 Misc. 773, 62 N.Y.S. 480

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 15, 1900

StatusPublished

This text of 30 Misc. 773 (Popkin v. Subin) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Popkin v. Subin, 30 Misc. 773, 62 N.Y.S. 480 (N.Y. Ct. App. 1900).

Pincite

Opinion

Leventritt, J.

When the plaintiff rested he. had proved a primai facie case in conversion and it was, therefore, error to dismiss the complaint. His evidence tended to show that the defendant, 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 the 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.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Leventritt, J.

When the plaintiff rested he. had proved a primai facie case in conversion and it was, therefore, error to dismiss the complaint. His evidence tended to show that the defendant, 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 the 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.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

30 Misc. 773, 62 N.Y.S. 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/popkin-v-subin-nyappterm-1900.