Weiss v. Rosetti , 23 A.D.2d 655 ( 1965 )

Determination of the Appellate Term affirming a judgment of the Civil Court in favor of defendant reversed on the tow and the facts and in the interest of justice and a new trial ordered, with $50 costs to appellant to abide the event. Plaintiff brought an action pursuant to subdivision f of section 435-4.0 of the Administrative Code to recover some $1,042 in cash taken from his person by a police officer after malting an arrest. The trial court found that plaintiff failed to establish, as required by the statute (1) a lawful title or property right in the money, and (2) that he had lawfully obtained possession thereof. Plaintiff’s testimony was that he obtained a large portion of this money by a lo'an from a named lender. It was defendant’s contention that the sum on plaintiff’s person Was money that was given Mm as wagers by several persons in the two days preceding his arrest. The evidence was not sufficient to convict plaintiff of the gambling charges (Penal Law, §§ 986, 986-b) for wMeh he was arrested. While acquittal is not conclusive (cf. Sochemaro v. Rossetti, 6 Mise 2d 23), it does relieve the claimant of the conclusion that his contrary explanation has been discredited. We believe that certain avenues of inquiry were not adequately explored and that a new trial should produce more satisfactory evidence. In the interest of justice there should be a new trial. Concur — Botein, P. J., Breitel, Eager and Steuer, JJ.; Stevens, J., dissents in the following memorandum: I dissent only insofar as, upon reversal, I would grant judgment to the plaintiff. That the evidence of the guardian of the peace was not irrefutable is obvious from the dismissal of the criminal charges against the plaintiff. Also equally obvious is the fact that plaintiff has given an uneontradieted explanation of the source of the funds in Ms possession. To now place the additional burden of further testimony upon the dramatis personae of this episode of human conduct is to invite from each ingenious explanations at the least, and at most outright perjury.