Rivera v. Simmons, 264 A.D. 887

Rivera v. Simmons

264 A.D. 887 | N.Y. App. Div. | 1942

Order of the Appellate Term, affirming an order and judgment of the Municipal Court of the City of New York, Borough of Brooklyn, affirmed, with costs. (See Rader v. Simmons, ante, p. 415, decided herewith.) Lazansky, P. J., Carswell and Johnston, JJ., concur; Taylor and Close, JJ., dissent and vote to reverse the order of the Appellate Term and the order and judgment of the Municipal Court of the City of New York, Borough of Brooklyn, and the direct judgment in favor of defendant, dismissing the complaint. The bare allegation of possession, thereby inferring legal possession, made in the moving affidavit, is overborne by the uneontradicted *888affidavit of the arresting officer that the plaintiff admitted at the time of his arrest that the money in suit was actually received by the plaintiff that day as the collections made by policy collectors and turned over to him. It is thus indubitably established that these moneys are the “ proceeds of crime ” and for the reason stated in the dissenting memorandum in Rader v. Simmons (ante, pp. 415, 421), decided herewith, the plaintiff has no claim thereto and judgment should have been ¡ granted to the defendant. [See post, p. 958; 265 App. Div. 937.]