
    James McLaughlin, Respondent, v. John F. Harriot, as Property Clerk of the Police Department, Appellant.
    (New York Common Pleas
    Additional General Term,
    November, 1895.)
    In an action for conversion in the detimt proof of title in a third person may be given under a general denial.
    On the arrest of one charged with "robbery committed in another state certain money's were taken from his person by the officer who made the arrest, and the prisoner subsequently assigned such moneys to plaintiff, who was his attorney. These moneys were subsequently adjudged to belong to the person robbed and directed to be paid to him. Held, that plaintiff took no title to the moneys and could not maintain conversion therefor against the property clerk.
    Appeal by the defendant from a judgment of the District Court in the city of New York for the eighth judicial district, rendered upon a trial before the justice thereof without a jury.
    
      Ohase Mellen, for appellant.
    
      Louis 8. Finn, for respondent.
   Giegeeich, J.

The present case demonstrates the value of the rule that upon an appeal from the judgment of a District Court this court may reverse upon the facts where injustice has obviously been done. Code Civ. Proc. §§ 3063, 3213; Curley v. Tomlinson, 5 Daly, 283; Brown v. Sullivan, 1 Misc. Rep. 161; 20 N. Y. Supp. 634; 48 N. Y. St. Repr. 685; Schumacher v. Waring, 7 Misc. Rep. 161; 57 N. Y. St. Repr. 539; 27 N. Y. Supp. 325.

"The action is conversion against the property clerk of the police department founded upon his failure to return, upon' demand, a sum of money taken from the person of one John O’Connell at a time when the latter was arrested in this city, "for extradition on a charge of robbery. His trial in a criminal court of the state of Pennsylvania resulted in his conviction. The identical money in suit was made use of- physically as evidence against him, and such money was, by the judgment of the court, declared to be the property of one David T. Slocum,- the. person robbed,'and directed to be paid over.to liim.

These facts are undisputed and the judgment of the foreign .court, duly authenticated, appears in evidence.

The respondent’s counsel "seeks to defend the recovery -below through reliance upon the proof that plaintiff, O’Connell’s attorney at the time of his arrest, became- the assignee of the sum in question, by assignment from O’Connell, after .such sum had-been forcibly taken from the person of the lat"ter when arrested. The argument appears to be that a prima facie case of trespass was made out against the arresting officer in favor of the prisoner O’Connell, and that the question of title to the money was immaterial (Kissam v. Roberts, 6 Bosw. 154), but, waiving the questions raised by the fact that such officer was not the defendant, that the act was done in performance of official duty and that the trespass, if any, antedated the assignment of the cause of action to the plaintiff, it ■ need only be said that the cause of action pleaded and sought to be proven was simply conversion as in the detmet, in which action proof of title in a third party may be given under the general issue. Griffin v. Long Island R. R. Co., 101 N. Y. 348.

That there was no substitution oi causes of action by consent, through failure to obiect to the evidence, follows from the fact that such evidence was not objectionable under the pleadings, since possession by O’Cbnnell when arrested bore upon the very material issue. o± title; in fact, was all that was shown upon the question by the plaintiff.

The inquiry resolves itself into a matter of factj whether or not the defendant established his defense under the denial of plaintiff’s title, and that plaintiff’s assignee had absolutely no title nor right of possession is beyond argument upon the evidence adduced.

In no way was the judgment of the foreign court sought to be attacked, and it was to be' accorded full faith and credit. Dunstan v. Higgins, 138 N. Y. 70; Taylor v. Bryden, 8 Johns. 133; Story Confl. of Laws,. §§ 592, 593.

The money taken from O’Connell was proven to be that produced before the foreign court by the testimony of the witness-Nugent, the police officer who made the arrest and identified the money upon the criminal trial, and there was no ground upon which the ' uncontradicted testimony of that witness could reasonably have been disregarded by the justice below. The only conclusion to be reached was that plaintiff’s assignee had no right or title to, or interest in the fund assigned, and we must hold that from an affirmance of this judgment a reckless perversion of justice would result.

For these reasons the judgment should be reversed and the complaint dismissed, with costs.

Bisohoff, J., concurs.

Judgment reversed and complaint dismissed, with costs.  