Opinion
October 21, 1971
Appeals by defendants Anderson and Williams from so much of an order of the Supreme Court, Tompkins County, which denied their motion for summary judgment. Plaintiff's action is to recover money claimed to be his which was found by the defendants Anderson and Williams at a dump. They move for summary judgment on the basis that since the currency cannot be identified, plaintiff's claim cannot be sustained. Special Term denied the motion, holding that a jury might reasonably and fairly infer that the scattered money came from plaintiff's drawer and that the drawer and the money belonged to plaintiff. We concur in this conclusion. It is settled law that an action for trover lies for the conversion of a definite sum of money, although the specific bills are not identified. ( Gordon v. Hostetter, 37 N.Y. 99, 103; Kelsey v. Bank of Mansfield, 85 App. Div. 334, 337.) On the papers presented we find sufficient evidence for the consideration of a jury as to whether plaintiff was the owner of the box described as being near the currency found at the dump, and if so, whether such currency was a part of the money placed by plaintiff in such box in his safe. Order affirmed, without costs. Reynolds, J.P., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.