Hofferman v. SimmonsHofferman v. Simmons
- Reporters:
- , , ,
- Before:
- Desmond
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
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crime connected with gambling: Hofferman, to the crime of book-making (
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 Bader and the man found in the apartment with him had keys to that box. On Bader’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 Bader 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 Bader admitted that he was a policy “ banker,” employing a number of collectors, also it is alleged that the apartment, though occupied by Bader, was leased under an assumed name and that Bader 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 Bivera 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. Beplevin is strictly a possessory action and plaintiff, to recover, must show a possessory right recognized by law. (Roach v. Curtis, 191 N. Y. 387, 390.) He must be the owner of the property, or lawfully entitled to its possession. (Rockwell v. Saunders, 19 Barb. 473, 482.) Where, as in these cases, the claim is not of *456 wrongful taking, but of wrongful detention, it is for the plaintiff to plead and prove facts showing that the detention is wrongful. (Rule Civ. Prac. rule 271, Civ. Prac. Act, § 1096.) “ The plaintiff, seeking to take property out of the possession of the defendant, was bound to show title in himself, and the defendant could defend itself by showing that he [plaintiff] did not have title, and thus did not have the right to take from it [defendant] the possession which it had acquired.” (Griffin v. Long Island R.R. Co., 101 N. Y. 348, 354, see Seidenbach v. Riley, 111 N. Y. 560, 566; Kaufman v. Simons Motor Sales Co., 261 N. Y. 146, 149.) Plaintiffs may not recover “ unless entitled to the possession when they commenced their action.” (Wood v. Orser, 25 N. Y. 348, 350.) “ As the plaintiff therefore had no title to these notes, and no right to the possession of them when this action was commenced, it had no right to take them from the possession of the defendant, no matter how imperfect its [defendant’s] title was. * * * ” (Black River Ins. Co. v. New York State L. & T. Co., 73 N. Y. 282, 291.) A plaintiff in replevin must always show a wrongful detention, and unless plaintiff “ has that general or special property and right of immediate possession, it cannot be true that it [the chattel] is wrongfully detained from him.” (Scofield v. Whitelegge, 49 N. Y. 259, 261.) Such is the basis of the rule (54 C. J. p. 439) that he who gets possession only under and by virtue of an illegal transaction cannot recover. “ To hold otherwise would give a premium to a law-breaker.” (Desmare v. United States, 93 U. S. 605, 612.)
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 (
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,
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 (Bader, Bivera and Smith) the judgments should be reversed and the motions for summary judgment denied, with costs in all courts.
Dissenting Opinion
(dissenting). 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.