290 N.Y. 449 | NY | 1943
Lead Opinion
Each of the four above-entitled actions is in replevin. In each action the plaintiff demands that the courts decree the return to him of money taken from him by New York City police officers and now held by the defendant, who is the property clerk of the New York City Police Department. In each case (except the Hofferman case, where there is a general denial only) the property clerk's answer contains a denial that plaintiff is entitled to a return of the money, and a separate defense to the effect that the monies seized and held by the police are the "proceeds of crime". Each plaintiff has heretofore pleaded guilty, in other proceedings, to a *454 crime connected with gambling: Hofferman, to the crime of book-making (Penal Law, § 986); Rader, to the crimes of using a room for policy playing and possessing policy slips (Penal Law, § 974); and Rivera and Smith to the crime of possessing policy slips (Penal Law, § 974). After these pleas had been entered and punishments had been meted out by the criminal courts, the plaintiffs demanded back from the property clerk the monies in controversy. He refused to surrender them, and these actions followed. Each plaintiff has been awarded judgment, plaintiff Hofferman after a trial without a jury in the Municipal Court of the City of New York, and the other plaintiffs on the granting of their motions for summary judgment, on affidavits. In each case a majority of the Appellate Division Justices held that neither the Penal Law (§§ 971, 977, 978, 979) nor the New York City Administrative Code (§ 435-4.0; L. 1937, ch. 929) nor any other controlling authority justified the continued retention of these monies by the property clerk. We shall discuss those statutes again later; we hold that their language and meaning is not determinative of the issues here.
Since these are replevin actions, we concern ourselves not so much with the defendant's right to hold as with the plaintiff's right to recapture. We must, therefore, examine the record to see whether the respective plaintiffs have conclusively established their rights to the monies or whether, on the other hand, enough appears to raise triable issues of fact on which the trial courts could decide against the plaintiffs. All the plaintiffs admit their arrests on the gambling charges, their pleas of guilty and the seizure of the monies at the times of the arrests. Plaintiff Hofferman, at the trial of his civil suit, admitted that the money he is suing for ($150) was taken by the police from a table in a room in which there were sixty people or more, that the money represented bets placed by those in the room and that after the seizure he (Hofferman) made good his customers' losses by reimbursing to them the amounts of their bets. In the Rader case plaintiff, moving for summary judgment, merely avers that at the time of his arrest the moneys which are the subject of the action ($1,012.50) were taken by the policemen from plaintiff's trousers pockets and from a closet, which the officers opened with a key taken from plaintiff. In the Rader case the answering affidavits of *455 the police officers say that they found thousands of policy slips in a locked box in the apartment and that both Rader and the man found in the apartment with him had keys to that box. On Rader's person, say the officers in their opposing affidavits, were slips of paper containing records of policy collections, and on the premises, affiants say, were other records showing that Rader had a number of policy collectors working for him who collected large sums daily. In the locked closet where some of the seized money was found there were found also, swear these officers, quantities of envelopes such as are used by policy collectors, a small adding machine, coin wrappers, etc. The affidavits contain further statements to the effect that plaintiff Rader admitted that he was a policy "banker," employing a number of collectors, also it is alleged that the apartment, though occupied by Rader, was leased under an assumed name and that Rader actually resided elsewhere, that the officers had had him under observation for a long time and had seen him meet the policy collectors on the street and hand to, and receive from those collectors, certain envelopes.
In the Smith and Rivera cases, the plaintiffs' affidavits for summary judgment simply allege that certain stated sums of money were taken from plaintiffs by the police at the time of the arrests, that the property clerk has refused to return the monies, and that the answers of defendant are sham. The police officers, answering, filed affidavits in which they say that they had followed the two plaintiffs to an apartment, which they entered, finding Smith and Rivera sitting at a table counting money, that both plaintiffs admitted to the officers that the money was that day's receipts from policy collectors, that a slip of paper found with the money contained the names and numbers of the policy collectors, and that each plaintiff admitted that he was a "pickup" man for those policy collectors.
We think it clear that these sworn statements of the police officers make it impossible to grant summary judgments, or judgments on the law, in favor of these plaintiffs. Replevin is strictly a possessory action and plaintiff, to recover, must show a possessory right recognized by law. (Roach v. Curtis,
Assuming, for present purposes, the truth of the police officers' statements, and applying thereto the settled rules governing replevin, we ask what right have the plaintiffs to demand that the courts get these monies back for them? What present title or possessory rights have they to show? The State Constitution itself outlaws the very acts these plaintiffs have pleaded guilty to. (Const. art. I, § 9.) The law affords a professional gambler no protection at all as to the monies he takes in (Penal Law, § 994, Bamman v. Erickson,
It is true that Penal Law sections 977, 978 and 979, authorizing the seizure and destruction of gambling implements, contain no directions as to the disposition of monies seized from gamblers by the police (see, however, Penal Law, § 985-a, which does deal with the disposition of monies found in slot machines). But the omission from the statutory law of specific rules governing the conduct of police officials with respect to seized monies does not enlarge the rights of professional gamblers. The failure of the Legislature to complete the statutory scheme as to gambling by providing for the ultimate disposition of monies seized from professional gamblers does not make lawful the possession of such monies by such persons or confer on them legal title thereto. "However, whatever may or may not be done with the money in the custody of the court, the power of our courts, either at law or in equity, cannot be invoked in aid of one showing a violation of the law, to complete the illegal transaction and secure to the violator the fruits of his outlawry." (Dorrell v. Clark, *458
In the Hofferman action the judgments should be reversed and a new trial granted with costs to the appellant to abide the event; in the other three actions (Rader, Rivera and Smith) the judgments should be reversed and the motions for summary judgment denied, with costs in all courts.
Dissenting Opinion
I dissent in the Hofferman case and vote to affirm the judgment for plaintiff. It has been found, after a trial of the issues, that the moneys in question were not the proceeds of crime, nor the instruments of a gambling process and were the property of plaintiff to which he was entitled to immediate possession. This court has no power to disturb the facts so found and affirmed by the Appellate Courts below. I concur in the result in the Rader, Rivera and Smith cases on the ground that triable issues of fact were presented by the pleadings which could not be resolved on motions for summary judgment.
LEHMAN, Ch. J., LOUGHRAN, LEWIS and CONWAY, JJ., concur with DESMOND, J.; RIPPEY, J. dissents as to the Hofferman action, and concurs in the result in the Rader, Rivera and Smith actions in a separate opinion; FINCH, J., taking no part.
Judgment accordingly. *459
