195 A.D. 117 | N.Y. App. Div. | 1921
This is an action on an assigned claim of the plaintiff’s husband to recover certain specified items of jewelry, alleged to have been owned by him and to have been seized and taken from his place of business as a dealer in jewelry at 156 Chrystie street in the borough of Manhattan, New York, by members of the police force of the city of New York as such officials on the 6th day of April, 1916, and on or about said date delivered by them into the possession, care and custody of the defendants Haslan as assistant property clerk and Barrett as property clerk of the police department, who it is alleged received and retained the property in their possession and custody in their said respective official capacities and subsequently delivered it over to their successors in office. It is further alleged that entries were made as required by law in the books of the property clerk of the police department, identifying and describing the property, and that it was therein identified and described on voucher or schedule No. 6677 as “ being and constituting Items Nas. 1, 2, 4, 5, 6, 7, 8, 10, 13, 31, 32 and 35,” and remained sg .identified and described
Section 1689 of the Code of Civil Procedure, which is in article 1 of title 2 of chapter 14, relating to the recovery of chattels, provides that nothing in that title is to be so construed as to prevent the plaintiff from uniting in the same complaint two or more causes of action in any case specified in section 484. Said section 484 permits, among other things, the joinder of two or more causes of action brought to recover “ chattels, with or without damages for the taking or detention thereof.” (See subd. 7.) Were it not for the official capacity in which the appellant received, held and delivered the property to his.successor in office, it is quite clear that the allegations of the complaint would be sufficient to show a cause of action against him for the conversion of the property, but the action is not in conversion and is only for the recovery of the possession of the property or its value, and the recovery of its value is only demanded as alternate relief in the event that possession of the whole or any part of the property cannot be had. Any cause of action plaintiff may have had for conversion is, therefore, waived. If it appeared that the possession of the property had been taken from the appellant by due process of law, an action for the recovery of the possession thereof
Section 332 of the Greater New York charter provides that “ Whenever property or money taken from any person arrested shall be alleged to have been feloniously obtained, or to be the proceeds of crime, and brought, with all ascertained claimants thereof, and the person arrested, before some magistrate for adjudication, and the magistrate shall be then and there satisfied from evidence that the person arrested is innocent of the offense alleged, and that the property rightfully belongs to him, then said magistrate may thereupon, in writing, order such property or money to be returned, and the property clerk, if he have it, to deliver such property or money to the accused person himself, and not to any attorney, agent or clerk of said accused person.” Section 333 provides that if any claim to the ownership of property or money
These statutory provisions were doubtless deemed sufficient to regulate the duties of the property clerk with respect to property coming into his custody. For complying with them and in good faith performing his duties under them, reasonably and intelligently, he should not be and cannot be subjected
The order should, therefore, be affirmed, with ten dollars costs and disbursements, but with leave to appellant to withdraw the demurrer and answer on payment of the costs of the appeal and motion.
Clarke, P. J., Smith, Page and Merrell, JJ., concur.
Order affirmed, with ten dollars costs and disbursements, with leave to appellant to withdraw demurrer and to answer on payment of said costs and ten dollars costs of motion at Special Term.