(concurring). Plaintiff sues as assignor of one Van Grulick, who it is admitted was in possession of $1,250 which the defendant received from him. It appeared that Van Grulick had stolen certain property, sold part of it and received $1,250 therefor, and that upon his arrest the $1,250 was taken from him by the police and deposited with the defendant as property clerk. Subsequently, Van Grulick was convicted of, and sentenced to a term of imprisonment for, the theft.
I cannot find in respondent’s brief any basis for the judgment sought here to be sustained. The learned corporation counsel says, “ it is a question of title.” Cases are then cited for the proposition that if goods are stolen and sold in market overt, “ the owner’s property is not altered in them but he may take them wherever he finds them;” also that the owner of negotiable securities stolen may pursue the proceeds of the sale in the hands of the felonious taker or his assignee with notice. If this case turns ‘ ‘ on the question of title ” neither of the principles asserted by respondent seems to have any application. The money, to recover which this action is brought, was not stolen; consequently the rule that title to goods stolen is not lost by the owner is quite beside the point. Nor is this action brought by the owner of stolen goods to pursue the proceeds in the hands of either the felonious taker *665or Ms assignee; consequently the second rule set out is without any force here. Finally, although respondent cites sections 331 and 333 of the charter, I find nothing in those sections or in any other sections referring to the property clerk, which either expressly or by implication covers tMs case, nor does respondent explain how they do.
Respondent’s counsel says: “ The money in question here, as proceeds of sold stolen chattels, is stolen itself as a matter of law, as it stands in the place of the stolen chattel.” This seems to me to be the vital point of the case and to be a totally incorrect statement of the legal situation. No authority is cited for the proposition, and a considerable search which I have made reveals none,, except that in Commonwealth v. Boudrie, 70 Mass. 419, Bigelow, J., says of stolen property: “ But if the property has been changed or converted into money the defendant may be well convicted of the larceny without any determination of the question as to his right to the property or money actually found in his possession.” See, also, Roberts v. Coleman, 141 Mass. 231. Whatever, therefore, may be the right of the original owner of the stolen property, which rights are neither involved nor suggested in the present case, or whatever the possible relations between the purchaser of the stolen goods and the thief, concerning which this record is entirely barren, there seems to be no ground presented by the present record on which the right to possession of the money sued for on the part of the plaintiff can be successfully challenged.
The ingenious suggestion has been made that the testimony which was admitted in regard to the circumstances under which Van Guliek sold the jewelry may be interpreted as signifying that the purchaser was innocent of knowledge that the jewels had been stolen; *666that Van Gulick, therefore, must he assumed to have sold them with an implied warranty of title in himself; that this was a false representation to the vendee; and that, consequently, the money was obtained by what the Criminal Code defines as larceny, and was finally, therefore, feloniously obtained. I am far from clear that the circumstances of the sale permit of the inference of innocence on the part of the vendee, but I shall assume that such inference is permissible, and that it would, therefore, follow that this money had been obtained by Van Gulick, plaintiff’s assignor, by way of false representations, or, as it is sometimes termed in the criminal law, false pretenses. That fact, however, would not change the determination of the rights of the respective parties to this litigation.. A person who obtains money or property through false representations is, nevertheless, invested with the title thereto until divested by some affirmative act of the party defrauded in the exercise of his option to cancel the transaction ab initio. The distinction is clearly recognized in the cases between money obtained by theft, namely, larceny, as it is known at common law, and money obtained by false representations, even though that process be defined in statutory law as larceny or a felony. In the case of theft or common law larceny, no title is obtained by the thief. In the case of false representations, or what I might term merely statutory larceny, the title passes. Benedict v. Williams, 48 Hun, 123; Barnard v. Campbell, 58 N. Y. 73-76; American Sugar Ref. Co. v. Fancher, 145 id. 522, 560, 561. See, also, Marden v. Dorthy, 160 id. 39, 59.
Further reference is also made in this connection to the power of the property clerk to receive and to hold money “ alleged to have been feloniously obtained.” Adopting even a very liberal view of the sections of *667the charter which I have cited, which define the powers and duties of the property clerk, and assuming that he had properly obtained possession of these moneys under these provisions, it is nevertheless provided that the property clerk may dispose of the money or property which has come into his hands only (§ 335) if it “ be not claimed by the owner.” It seems to me quite clear upon the authorities that, until some action be taken, either by the person from whom the property was originally stolen or the person who we have assumed parted with the money on false representations, Van Gulick must, in the eye of the law, be deemed to be the “ owner,” and that this action by his assignee is properly brought.
I express no opinion on the result of proof, if any be adduced, to the effect that the money involved is retained by the defendant as evidence in a criminal prosecution.
Judgment reversed and new trial ordered, with costs to appellant to abide event.