Muhlstein v. New York Central Railroad

Lehman, J.

The plaintiff sued for the conversion of certain brass railroad journal bearings. It is not disputed that these bearings were taken by the defendant from plaintiff’s possession. It is also not disputed that the plaintiff had bought these goods from a third party. It is clear that the possession of the goods by the plaintiff under the circumstances disclosed was presumptive evidence that lawful title was in him. The brass bearings bore the initials of certain railroad companies including the defendant and I think that the evidence is sufficient to show that at least part of these bearings was at one time the prop*215erty of the defendant. This evidence, however, is clearly not sufficient to rebut the presumption that the plaintiff’s possession was lawful unless the evidence also shows that the defendant did not part with this property or if it did sell this property to a third party the third party did not sell the property. In other words the presumption that the plaintiff’s possession was lawful can be rebutted only by affirmative proof that the person who sold the brass to the plaintiff never had any title to it. I agree that upon this record the evidence produced by the defendant is sufficient merely to throw suspicion upon the plaintiff’s good faith and perhaps on his title but in nowise affirmatively shows that his title was bad and in nowise impeaches the credibility of the testimony of the plaintiff that he was in possession of the goods by purchase from a third party. For these reasons I agree that the judgment should be reversed but I think that the defendant is entitled to a new trial. The record shows that the defendant took this brass acting upon the belief that it was stolen. It has attempted to show justification for this belief by testimony intended to show that at least a large part of the brass was its property at one time; that it never sold any brass of this nature to any party except the manufacturer; and that the manufacturer did not sell any brass of this kind to third parties. If the testimony produced had actually shown these facts, then, of course, it would follow that the plaintiff’s possession was unlawful. The testimony however is not sufficient for this purpose for two reasons. It does not show that all the brass marked like the brass taken from plaintiff’s possession was sold to the manufacturer and it does not show that the manufacturer never sold such brass to third parties. In view however of the nature of the testimony actually produced and the suspicion which *216does rest upon the plaintiff’s good faith, I think that the defendant is entitled to an opportunity to supply this testimony. Judgment should therefore be reversed, and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Pendleton, J., concurs.