
    Tobias Leibman et al., Appellants, v. Samuel I. Abramson, as one of the Marshals of the City of New York, Respondent. Hirsch Liebman, Appellant, v. The Same, Respondent.
    (Supreme Court, Appellate Term,
    December, 1899.)
    Conversion — Evidence as to possession.
    Where persons, alleging that they are entitled to the, actual possession of certain machines, bring an action for conversion against a city marshal who has replevied them as the property 'of ''añoíher,1 the said persons are entitled, upon the trial of the action, to ask witnesses, acquainted with the facts, the question, “ When the marshal came and took the machines, in whose possession were the machines ? ”—as such a question calls for a material fact and does not call for an opinion upon the facts.
    Appeals by the plaintiffs from judgments rendered in favor of the defendant in the Municipal Court, fifth district, borough of Manhattan.
    Abraham H. Sarasohn, for appellants.
    Emanuel Hertz, for respondent.
   Freedman, P. J.

These actions were brought by the plaintiffs to recover damages for the alleged conversion of personal property. They are both founded upon the same state of facts, and were tried as one action, and the defendant had a judgment in each case. The facts and circumstances out of which the alleged ■cause of action arose are substantially as follows:

The plaintiffs and one Louis Treibitsh were at one time co-partners and engaged in the tailoring business at No. 125 East Broadway in this city. Subsequently, and on or about May 1, 1899, this partnership was dissolved by the withdrawal of Treibitsh therefrom, and the business was continued by these plaintiffs in the same place.

On August 8, 1899, one Max Pine instituted a replevin action against Treibitsh for the recovery of the possession of several sewing machines, claimed to have been purchased by him of Treibitsh.

A requisition was thereupon issued to the defendant herein, as one of the marshals of the city of Eew York, and by virtue of such requisition, the marshal entered the place of business occupied by the plaintiffs and seized and took into his possession several machines claimed to be owned by, arid to have been in their possession.

This action was thereupon brought against him, and the question litigated upon the trial was, in whose possession was the property at the time of the seizure thereof by the defendant.

That such an action lies at the instance of the owner, or of the person entitled to the possession of property, against the marshal or sheriff who has taken the same by virtue of replevin process, from the owner or person entitled to such possession and other than the defendant named in the writ has been decided in many cases. Deutsch v. Reilly, 8 Daly, 132; Bullis v. Montgomery, 50 N. Y. 352; Otis v. Williams, 70 id. 208; Stimpson v. Reynolds, 14 Barb. 506.

It, therefore, became necessary for the plaintiffs to show that they were in the actual possession of the property at the time the marshal seized the same.

Eumerous questions similar in character and import to the following were asked of the plaintiffs, objected to by the defendant’s counsel and excluded by the court, to wit: “When the marshal came and took the machines, in whose possession were the machines?”

These questions called for facts, such as were material and necessary and were addressed to witnesses who had knowledge of, and were competent to, testify as to those facts, "and were proper and competent questions. De Wolf v. Williams, 69 N. Y. 621; Davis v. Peck, 54 Barb. 425; Casper v. O’Brien, 36 N. Y. Super. Ct. 574, and the refusal of the trial judge to permit them to he answered was error for which a new trial should be granted. Eone of the other points raised by the appellants need be considered.

Judgments reversed, new trial granted, with costs to the appellants to abide the event, in each case.

Levekteitt, J., concurs.

MacLean, J.

(dissenting). It was incumbent upon the plaintiffs herein to prove “ actual possession or a right to the immediate possession ” of the articles which were taken by the marshal under the writ. If it had beén shown, as it was apparently in DeWolf v. Williams, 69 N. Y. 621, that the questions involved matters “ clearly .within the knowledge of the witness, and not the expression of an opinion upon facts proven,” they might have been admissible. But in this case, each of the questions was “ properly overruled for the reason that an answer to each of them called for a construction which the witness would place upon the facts * * *, or his opinion in reference to the same.” Nicolay v. Unger, 80 N. Y. 54. If the witnesses whom counsel for the plaintiffs practically asked, by the questions excluded, to determine the essential fact in the case, clearly had such knowledge as to make them capable of testifying to the construction which they placed -upon the facts going to make up possession or title to possession, the plaintiffs easily might have had the competent evidence by properly asking therefor, which they neglected to do. The judgments should be affirmed, with costs. Judgments affirmed, with costs to the respondent.

Judgments reversed and new trial ordered, with costs to appellants to abide event.  