
    Isaac Popkin, Appellant, v. Jacob Subin, Respondent.
    Appeal from a judgment dismissing the complaint, rendered in the Municipal Court of the city of Rew York, fourth district, borough of Manhattan.
    A. H. Sarasohn, for appellant.
    Moses Feltenstein, for respondent.
   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.  