Hunterfly Realty Corp. v. State

• Decision Date: 30 March 1970
• Citation: 309 N.Y.S.2d 260,62 Misc.2d 567
• Parties: HUNTERFLY REALTY CORP., Plaintiff, v. STATE of New York, New York State Museum, G. Carroll Lindsay and Donald W. Fisher, Defendants.
• Court: New York Supreme Court

Page 260

309 N.Y.S.2d 260

62 Misc.2d 567

HUNTERFLY REALTY CORP., Plaintiff, v. STATE of New York, New York State Museum, G. Carroll Lindsay and Donald W. Fisher, Defendants.

Supreme Court, Special Term, Kings County, Part I.

March 30, 1970.

Raphael, Searles & Vischi, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for defendants.

MEMORANDUM

WILLIAM T. COWIN, Justice.

In this action for a declaratory judgment against the State of New York and other defendants, plaintiff seeks an adjudication that it is the rightful owner and entitled to possession of the skeleton of a mastodon now in the State Museum at Albany. Defendants move for summary judgment asserting among other things that the court has no jurisdiction.

Plaintiff was the owner of a parcel of real property in the town of Montgomery, Orange County, in the State of New York. In connection with proposed construction of Interstate Route 503, the State of New York, on July 5, 1967, filed a map in the office of the Secretary of State. There is some difference between the parties as to whether the filing was made pursuant to Section 29 or Section 30 of the Highway Law. However, for our purposes, the pertinent provisions of both sections are substantially the same. Subdivision 5 of each section provides that upon such filing the State 'may immediately enter upon and take possession of the property so described' for the purposes of the planned highway. In the course of excavation in a peat bog approximately 12 feet down, on April 23, 1968, a complete skeleton of a mastodon alleged to be approximately 10,000 years old was discovered. Although souvenir hunters removed some of the bones, State and private archeologists who were called in succeeded in uncovering and removing approximately 90% Of the skeleton. The remains of the mastodon are now in the State Museum in Albany where they have been treated with chemical preservatives.

The Encyclopedia Britannica, vol. 14, page 10, 49th Ed., 1966, defines 'mastodon' as the 'common and generic name (synonymous with 'mammut') of extinct elephantlike proboscideans' and states that the 'best-known example from North America is Mastodon Americanus, a large two-tusked mastodon of the Pleistocene epoch.'

The Encyclopedia Americana, Ed.1969, Vol. 18, page 419, states that Mastodon Americanus was a large bulky proboscidean; their skeletons are as much as nine or ten feet in height at the shoulder, and that a mastodon of this height would have been much heavier than a modern elephant. The Encyclopedia Americana states, 'Probably the most complete and famous mastodon skeleton to be discovered is the so-called Warren Mastodon, unearthed a century ago in a swamp near Newburgh, New York (not too far from the discovery of the present bones). That skeleton was first exhibited in many towns and cities of eastern North America, but in time it came to rest in the private museum of Dr. John C. Warren of Boston. In 1909, it was purchased by the American Museum of Natural History, New York City, through the munificence of Mr. J. P. Morgan, and it is now exhibited in that institution.'

I have no information as to whether there has been any similar find in the past century until this present one. Assuming there has been none, as defendants state, this latest discovery is of 'extraordinary significance' and its scientific value beyond estimation. Assuming the correctness of the estimate of the State Paleontologist that the skeleton is approximately 10,000 years old, then, when Abraham left Ur of the Chaldees, this skeleton had already been buried for 60 centuries. The defendants urge that this find is one of 'transcendent importance and preservation of this skeleton under scientific conditions and for the benefit of scholars as well as the general public is essential.' (Page 4 of affidavit by Donald W. Fischer, State Paleontologist.)

This action, brought for a declaratory judgment by plaintiff, asks that the court adjudge it is the owner of the bones and that the defendants be directed to turn them over to it. Claims for money damages against the State are relegated by law to the Court of Claims (Court of Claims Act, §§ 8 and 9; See Psaty v. Duryea, 306 N.Y. 413, 416, 118 N.E.2d 584, 585; Adler, Inc. v. Noyes, 285 N.Y. 34, 32 N.E.2d 781). Plaintiff insists that it seeks no money damages and will be satisfied only with the delivery of the mastodon bones and that this court has jurisdiction and not the Court of Claims.

Waivers of sovereign immunity must be strictly construed (Wolf v. State, 219 App.Div. 584, 219 N.Y.S. 348, affd. 247 N.Y. 542, 161 N.E. 175, Smith v. State, 227 N.Y. 405, 410, 125 N.E. 841, 842). The State of New York has given its permission by legislative enactment to be sued in specific situations in the manner provided by statute and this court is bound by this legislative permission. There does exist express legislative sanction for this court to entertain actions and proceedings against the State involving conflicting claims to real property, partition and foreclosure. Proceedings in the nature of certiorari, mandamus or prohibition affecting a State agency may also be brought in this court pursuant to Article 78 of the CPLR.

There is also some authority permitting an action for a declaratory judgment against the State in the Supreme Court under CPLR 3001 and 3017(b) (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3001.21; Town of Ohio v. People, 264 App.Div. 220, 35 N.Y.S.2d 107). While the use of a declaratory judgment can be justified in many situations though an alternative remedy exists (3 Weinstein-Korn-Miller, op. cit., 3001.10; Borchard on Declaratory Judgments, 2d Ed., p. 315 et seq.; James v. Alderton Dock Yards, 256 N.Y. 298, 176 N.E. 401; Woollard v. Schaffer Stores Co., 272 N.Y. 304, 5 N.E.2d 829). Nevertheless the rule is qualified by the general principle that where there is no necessity for such a declaratory judgment and it would serve no useful purpose or where there is a full and adequate remedy available through an established form of action, the remedy should not be used (24 Carmody-Wait 2d, New York Practice, § 147:6). An example of the latter would be an action for replevin or conversion instead of a suit to establish a lien on chattels (Brownell v. Board of Education, etc., 239 N.Y. 369, 146 N.E. 630; cf. G. Goldberg & Sons, Inc. v. Gilet Bldg. Corp., 135 Misc. 158, 237 N.Y.S. 258).

It appears from all the facts before me that replevin is decidedly more suited to plaintiff's claim than a declaratory judgment. Using G. Goldberg & Sons, Inc. v. Gilet Bldg. Corp. (supra) as authority, Carmody-Wait 2d (vol. 12, § 82.8, p. 558) states, 'Replevin is a more precise and complete remedy for unlawful detention than a declaratory judgment, for when final judgment is entered on the former, all rights between the parties will have been determined, but such result may not necessarily obtain where a declaratory judgment is sought.'

The defendants feel that this action is for all procedural purposes better suited as an action in replevin, and I am inclined to agree. Plaintiff objects that such a holding would put it out of court because there is no precedent which would permit an action in replevin against the State in this court. Plaintiff further asserts that the Court of Claims has no jurisdiction of such an action but cites no authority other than a reference to Court of Claims Act, Section 9.

The sole precedent which has been disclosed to this court is Conklin v. Palisades Interstate Park Commission, 282 App.Div. 728, 122 N.Y.S.2d 403, which involved an action for...