Hofferman v. Simmons

• Decision Date: 27 May 1943
• Citation: 49 N.E.2d 523,290 N.Y. 449
• Parties: HOFFERMAN v. SIMMONS, Property Clerk of Police Department of City of New York. RADER v. SAME. RIVERA v. SAME. SMITH v. SAME.
• Court: New York Court of Appeals Court of Appeals

290 N.Y. 449

49 N.E.2d 523

HOFFERMAN

v.SIMMONS, Property Clerk of Police Department of City of New York.

RADER

v.SAME.

RIVERA

v.SAME.

SMITH

v.SAME.

Court of Appeals of New York.

May 27, 1943.

Separate actions by Louis Hofferman, Henry Rader, Albert Rivera, and John Smith against Maurice Simmons, as property clerk of the police department of the City of New York, to recover money taken from plaintiffs by police officers of the City of New York and detained by defendant. In the first action, defendant appeals by permission of the Appellate Division, 264 App.Div. 958, 37 N.Y.S.2d 442, from a judgment of the Appellate Division, 264 App.Div. 884, 35 N.Y.S.2d 925, entered June 30, 1942, which as resettled affirmed insofar as appealed from a determination of the Appellate Term which in turn affirmed a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, Ruvola, J. presiding, in favor of plaintiff after a trial by the court without a jury. The judgment of the Appellate Division was resettled by an order entered January 25, 1943, so as to include an adjudication of the affirmance by the Appellate Division of the order of the Appellate Term, after such motion had been denied by the Appellate Division, 265 App.Div. 935, 38 N.Y.S.2d 409, and after motion for leave to appeal to Court of Appeals and for resettlement of judgment on the order of affirmance had been denied by Appellate Division, 265 App.Div. 1002, 39 N.Y.S.2d 619, with leave to renew motion after entry of a proper judgment containing the adjudication of affirmance. In the second action, by permission of the Appellate Division of the Supreme Court, 264 App.Div. 958, 37 N.Y.S.2d 442, defendant appeals from an order of such court entered July 2, 1942, 264 App.Div. 415, 35 N.Y.S.2d 573, which as resettled affirmed a determination of the Appellate Term, 178 Misc. 137, 32 N.Y.S.2d 397, which reversed an order of the city court of the City of New York, Towers, J. presiding, denying a motion by plaintiff for summary judgment and granted such motion, leave to appeal to the Appellate Division having been granted by that Court, 263 App.Div. 892, 32 N.Y.S.2d 1020. The judgment of the Appellate Division was resettled by an order entered January 22, 1943, so as to include an adjudication of the affirmance by the Appellate Division of the order of the Appellate Term after motion to resettle order had been denied, 265 App.Div. 937, 39 N.Y.S.2d 414, and motion for leave to appeal to Court of Appeals and for resettlement of judgment on order of affirmance had been denied265 App.Div. 1003, 39 N.Y.S.2d 621, with leave to renew motion after entry of a proper judgment containing the adjudication of affirmance. In the third action, defendant by permission of the Appellate Division of the Supreme Court, 264 App.Div. 958, 37 N.Y.S.2d 445, appeals from a judgment of such court, entered November 21, 1942, 264 App.Div. 887, 35 N.Y.S.2d 921, pursuant to an order of the Appellate Division affirming an order of the Municipal Court of the City of New York, Borough of Brooklyn, McLaughlin, J. presiding, granting a motion by plaintiff for summary judgment and directing that plaintiff have judgment for a stated sum. The defendant's motion to resettle order granting leave to appeal from order of affirmance was treated as a motion for leave to appeal to the Court of Appeals from judgment entered on order of affirmance and as such was granted by Appellate Division, 265 App.Div. 937, 38 N.Y.S.2d 447. In the fourth action, by permission of the Appellate Division, 264 App.Div. 958, 37 N.Y.S.2d 443, defendant appeals from a judgment entered November 21, 1942, pursuant to an order of the Appellate Division, 264 App.Div. 889, 35 N.Y.S.2d 922, which affirmed a determination of the Appellate Term affirming an order of the Municipal Court of the City of New York, Borough of Brooklyn, McLaughlin, J. presiding, granting a motion by plaintiff for summary judgment and directing that plaintiff have judgment for a stated sum.

In the first action judgments reversed and new trial granted, and in the other actions, judgments reversed and motions for summary judgment denied.

See, also, 177 Misc. 962, 32 N.Y.S.2d 244.

RIPPEY, J., dissenting in part. Thomas D. Thacher, Corp. Counsel, of New York City (Paxton Blair, James Hall Prothero, and Nathan B. Silverstein, all of New York City, of counsel), for appellant.

Harry J. Harrison and Jerome J. Fendrick, both of New York City, for Louis Hofferman, respondent.

Arthur Morris, of New York City, and Morris Okoshken, of Jamaica, for Harry Rader, respondent.

Jacob Siegfried, of Brooklyn, for Albert Rivera and John Smith, respondents.

DESMOND, Judge.

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 crime connected with gambling: Hofferman, to the crime of bookmaking, Penal Law, s 986, Consol. Laws, c. 40; Rader, to the crimes of using a room for policy playing and possessing policy slips, Penal Law, s 974; and Rivera and Smith to the crime of possessing policy slips, Penal Law, s 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, ss 971, 977, 978, 979, nor the New York City Administrative Code s 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 monies 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 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 judgment, or judgments on the law, in favor of these plaintiffs. Replevin is strictly a...