SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 15, 1969
RICHARD FOGLIA, RESPONDENT,
LOUIS ROTHSCHILD, APPELLANT, ET AL., DEFENDANTS
In an action to recover chattels, the appeal is from a judgment of the Supreme Court, Nassau County, entered January 13, 1969, after a non-jury trial, adjudging that plaintiff has title to the chattels and is entitled to possession of them and dismissing defendant Rothschild's counterclaim.
Brennan, Acting P. J., Hopkins, Munder and Martuscello, JJ., concur; Benjamin, J., dissents.
Judgment affirmed, without costs.
Benjamin, J., dissents and votes to reverse the judgment, dismiss the complaint and grant judgment to appellant on his counterclaim, with the following memorandum:
In my opinion, plaintiff's testimony was so bizarre and so contrary to ordinary, common-sense business practice that it must be rejected as incredible. At the very least it was insufficient to rebut the presumption of ownership in defendant Testa, flowing from his possession of the subject chattels.
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