App. Div.] First Department, February, 1921. thereafter until and including the 11th of January, 1918; that the seizure and removal of said property from the possession of the plaintiff's husband was wrongful and unlawful, and the property was received by the defendants Haslan and Barrett with knowledge and chargeable with knowledge that it had been so wrongfully and unlawfully seized without warrant or authority of law; that on the day the property was so seized the officers who seized it charged plaintiff's husband with the crime of criminally receiving stolen property, and he was indicted and on the 8th of May, 1916, convicted on the charge in the Court of General Sessions and sentenced to a term in State prison, but that none of the articles seized constituted any part of the articles for receiving which he was convicted or of the corpus delicti of the crime for which he was indicted and convicted; that after the conviction of plaintiff's husband neither defendant Haslan nor defendant Barrett had any claim to the property as against him or his assigns and on the 11th of May, 1916, for a valuable consideration, he duly assigned, transferred and set over unto the plaintiff all his right, title and interest in and to said property, and thereafter and on or about that date she informed said defendants of said assignment and that she was the owner of the property, and duly demanded of them and each of them as such assistant property clerk and property clerk that they and each of them deliver to her the possession of the property, but that they jointly and severally refused so to do, and that both of them continued to hold the possession, care and custody of the property, and that Haslan in his official capacity continued to hold it until the 11th of January, 1917, and Barrett in his official capacity continued to hold it until the 31st of December, 1917. It is then alleged, inconsistently with the foregoing, that said Barrett duly resigned on the 31st of December, 1916, and ceased to be such property clerk on January 1, 1917, and that Haslan duly resigned and ceased to be assistant property clerk on January 31, 1918. It is further alleged that the defendant Sunderman was assistant property clerk of said department from December 31, 1916, to and including January 11, 1917, and acted as property clerk between January 1 and January 11, 1917, but ceased to act as such on or about the latter date; First Department, February, 1921. [Vol. 195. that on or about the 1st of January, 1917, defendants Barrett as property clerk and Haslan as assistant property clerk delivered over said property to said Sunderman as acting property clerk, although they at that time knew and were chargeable with knowledge that the property was not lawfully in their possession and custody as such officials, but was the property of the plaintiff and had been and was wrongfully withheld from her by them and each of them, and that Sunderman received the property from them with knowledge and chargeable with knowledge that it belonged to the plaintiff, who had duly demanded the return thereof, and that it had been and was wrongfully withheld from her; that from January 11, 1917, to and including January 18, 1918, defendant Ringer was the duly appointed and acting property clerk of said department and on the latter date resigned; that on January 11, 1917, defendants Haslan and Sunderman as assistant property clerk and acting property clerk delivered said property and the possession, care and custody thereof to defendant Ringer as property clerk with knowledge and chargeable with knowledge that it was not lawfully in their possession, care and custody but was the property of the plaintiff and had been wrongfully withheld from her by them and the defendant Barrett as aforesaid, and that she had duly demanded the return of it to her, and Ringer as property clerk received the property knowing that the plaintiff had made due demand for the return thereof to her and that she claimed to be and was the owner thereof; that from April 6, 1916, until the assignment to the plaintiff, her husband was the only person who was or claimed to be the owner and who demanded the return of the property, and after the assignment plaintiff was the only person who claimed to be the owner and who demanded the return of the property; that the defendants jointly and severally took into their possession and kept in their possession, care and custody as alleged in the complaint, the said property with knowledge and chargeable with knowledge that it had been so wrongfully and unlawfully seized and taken from the possession of her husband, and that plaintiff has duly demanded of them and each of them-the return of the property and they and each of them have refused and continue to refuse to deliver the property to her, and that App. Div.] First Department, February, 1921. with knowledge of the wrongful and unlawful seizure and taking of the property, they "acted together in continuity and in concert, wilfully and wrongfully to deprive" the. plaintiff of the property and of the use and benefit thereof, and have deprived her of the possession, use and benefit thereof, and that they have jointly and severally, wrongfully and unlawfully, retained and withheld the property from her and still continue so to do, and that the property is worth the sum of $7,399. Judgment is demanded against each of the defendants individually and in his official capacity as aforesaid, jointly and severally, adjudging that plaintiff is the owner and entitled to possession of the property, and that it be delivered to her forthwith, and in case possession thereof cannot be given, that she have judgment against the defendants jointly and severally both individually and in their respective official capacities for $7,399. The sole ground of the demurrer is that the complaint fails to state facts sufficient to constitute a cause of action against the appellant individually and as property clerk. Section 1689 of the Code of Civil Procedure, which is in article 1 of title 2 of chapter 14, relating to the recovery of chattels, provides that nothing in that title is to be so construed as to prevent the plaintiff from uniting in the same complaint two or more causes of action in any case specified in section 484. Said section 484 permits, among other things, the joinder of two or more causes of action brought to recover "chattels, with or without damages for the taking or detention thereof." (See subd. 7.) Were it not for the official capacity in which the appellant received, held and delivered the property to his successor in office, it is quite clear that the allegations of the complaint would be sufficient to show a cause of action against him for the conversion of the property, but the action is not in conversion and is only for the recovery of the possession of the property or its value, and the recovery of its value is only demanded as alternate relief in the event that possession of the whole or any part of the property cannot be had. Any cause of action plaintiff may have had for conversion is, therefore, waived. If it appeared that the possession of the property had been taken from the appellant by due process of law, an action for the recovery of the possession thereof First Department, February, 1921. [Vol. 195. could not be maintained against him, but where, as here, it is alleged that with knowledge of the plaintiff's right to the possession of the property, he refused her demand for possession and wrongfully retained possession and delivered possession to his successor in office, unless protected by his office, he would still remain liable in an action to recover possession of the property, notwithstanding the fact that he has parted with possession; and that evidently is the theory on which the allegations with respect to his knowledge of plaintiff's rights, and wrongful refusal to recognize them and wrongful delivery of the property to another were inserted in the complaint, and not to afford the basis of an action for conversion. (Vogel v. Badcock, 1 Abb. Pr. 176; Sinnott v. Feiock, 165 N. Y. 444; Barnett v. Selling, 70 id. 492; Dunham v. Troy Union R. R. Co., 3 Keyes, 543.) The demurrer does not require a decision or the expression of an opinion as to whether causes of action have been improperly united. The complaint shows that all of the defendants, with the exception of Sunderman, have parted with all custody and possession and control of and over the property to their successors in office, and it is to be inferred that the property is still held by the property clerk or assistant property clerk of the police department and that possession thereof can be acquired by the plaintiff if entitled thereto. If is, however, stated in respondent's points that the property has been lost by theft, but that is not shown by the record. The learned counsel for the appellant contends that the presumption of law in favor of the legality of the acts of public officials is not overcome by the allegations of the complaint, and that the property having been seized by police officers and delivered to the property clerk of the police department and no court order having been obtained requiring the delivery of it to the plaintiff, appellant was not only warranted in withholding possession of the property, but it was his duty so to do and to deliver it to his successor when he resigned. The statutory provisions cited in support of the contention are sections 331-333 of the Greater New York charter (Laws of 1901, chap. 466) and sections 685-691 of the Code of Criminal Procedure. Section 331 provides for the appointment by the police commissioner of some person as clerk to take charge of all property App. Div.] First Department, February, 1921. alleged to have been stolen or embezzled and which is brought into the "police office," and all property taken from the person of a prisoner, and all property or money alleged or supposed to have been feloniously obtained, or which shall be lost or abandoned and taken into the custody of any member of the police force in the city of New York, and which shall come into the custody of any criminal court or any magistrate or officer, and provides for the description and registration of such property in a book to be kept by the property clerk, which shall contain the name of the owner or claimant if ascertained, the place where found, the name of the person from whom taken, with the general circumstances, the date of its receipt, the name of the officer recovering the same, a description thereof, the names of all claimants thereto, and any final disposition of such property or money." The statute further provides that the police commissioner may prescribe regulations in regard to the duties of the property clerk. (See, also, Laws of 1917, chap. 400, amdg. said § 331.) Doubtless, as contended by counsel for the appellant, it was the duty of the property clerk to receive the property in the first instance, but counsel for respondent argues that he had no right to retain it as against the demands of the lawful owner after the trial and conviction of the plaintiff's husband, which so far as may reasonably be inferred from the allegations of the complaint, removed any further necessity for retaining the property as evidence. Section 332 of the Greater New York charter provides that "Whenever property or money taken from any person arrested shall be alleged to have been feloniously obtained, or to be the proceeds of crime, and brought, with all ascertained claimants thereof, and the person arrested, before some magistrate for adjudication, and the magistrate shall be then and there satisfied from evidence that the person arrested is innocent of the offense alleged, and that the property rightfully belongs to him, then said magistrate may thereupon, in writing, order such property or money to be returned, and the property clerk, if he have it, to deliver such property or money to the accused person himself, and not to any attorney, agent or clerk of said accused person." Section 333 provides that if any claim to the ownership of property or money |