Reddin v. Lawlor

BISCHOFF, J. Plaintiff instituted an action for the conversion of a dog, and appeals from a judgment rendered in favor of the defendant. Upon the record we must uphold the decision. The evidence in support of the judgment establishes the fact that the dog was in the possession of the plaintiff’s husband after she had temporarily left their common home, and that in her absence he had presented the animal to the defendant, who in turn had made a gift of it to another person, prior to the date of plaintiff’s demand. As between husband and wife the possession of this dog, which was not shown to be a chattel in the nature of bona paraphernalia, imported title in the husband, the enabling acts in favor of married women notwithstanding. 9 Am. & Eng. Enc. Law, p. 801, and cases cited; Whiton v. Snyder, 88 N. Y. 299. Unrebutted, then, the facts surrounding the transfer of possession to defendant supported a finding of title in the transferee. Appellant’s uncorroborated testimony that the dog had originally been presented to her as a Christmas gift, being the testimony of a party in interest, was not controlling upon the justice (Frankel v. Wolf, 7 Misc. Rep. 190, 27 N. Y. Supp. 328; Davey v. Lohrmann [Com. Pl. N. Y.] 20 N. Y. Supp. 675), and in support of the judgment we must assume that it was not found to be sufficient to rebut the presumption raised in favor of the defendant’s title. We cannot say that the judgment is against the evidence, and no questions of law are presented upon this appeal. Judgment affirmed, with costs. All concur.