
    Abraham Harawitz, Plaintiff, Appellant, v. James E. Murray, as Property Clerk of the Police Department of the City of New York, Defendant, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 3, 1924.
    Assignments — action against property clerk of police department to recover moneys found on person of plaintiff’s client after arrest on burglary charge — -defendant turned moneys over to sheriff pursuant to warrant of attachment served three days after assignment to plaintiff was filed — no proof invalidating assignment or that moneys, were proceeds of robbery — judgment directed for plaintiff.
    A judgment in an action to recover $400 from the defendant as property clerk of the police department of the city of New York should be reversed and judgment directed for the plaintiff where it appears that the moneys were turned over to the defendant after having been found upon the person of plaintiff’s client following his arrest for burglary; that on October 29, 1923, the plaintiff filed an assignment, in his favor, for this amount, with the defendant; and that pursuant to a warrant of attachment served upon the defendant November 1, 1923, after the firm which plaintiff’s client is alleged to have robbed commenced an action against plaintiff’s client, defendant turned the moneys over to the sheriff, since there is no proof that the moneys in question were the proceeds of the robbery and that the assignment was invalid.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of defendant.
    
      Max Sheinart, for the appellant.
    
      George P. Nicholson, corporation counsel (John F. O’Brien, Henry J. Shields and John S. Slattery, of counsel), for the defendant, respondent.
   Per Curiam.

Plaintiff brought this action in the Municipal Court to recover from the defendant as property clerk of the police department of the city of New York the sum of $400 which was found upon the person of one Joseph Wilson and turned over to this defendant as property clerk.

On October 25, 1923, Wilson and one Schneider were arrested, charged with robbery in the first degree. They had stolen silk to the value of $71,000 belonging to Gerli & Co.

On October 29, 1923, an assignment dated October 26, 1923, was filed with the defendant by which Wilson assigned this amount to the plaintiff who was his attorney.

Gerli & Co. commenced an action against Wilson and Schneider and obtained a warrant of attachment on November 1, 1923. It was served on the same day. On the fourteenth or fifteenth day of November the defendant, as property clerk, turned, the money over to the sheriff pursuant to the warrant of attachment which had been served upon him. He paid no attention whatever to the assignment to plaintiff which had been filed with him in October. There is no proof that the moneys in question were the proceeds of the robbery. With no proof that the assignment was invalid, judgment should have been rendered in favor of the plaintiff.

Judgment reversed, with fifteen dollars costs, and judgment directed in favor of plaintiff for the sum demanded in the summons, with costs.

All concur; present, Guy, Gavegan and Mitchell, JJ.

Judgment reversed and judgment directed for plaintiff.  