Hurley v. City of Niagara Falls

• Decision Date: 09 May 1968
• Citation: 289 N.Y.S.2d 889,30 A.D.2d 89
• Parties: Edward HURLEY, Appellant, v. CITY OF NIAGARA FALLS, New York, and Sam Moraca and Frances Moraca,Respondents.
• Court: New York Supreme Court — Appellate Division

Page 889

289 N.Y.S.2d 889

30 A.D.2d 89

Edward HURLEY, Appellant, v. CITY OF NIAGARA FALLS, New York, and Sam Moraca and Frances Moraca,Respondents.

Supreme Court, Appellate Division, Fourth Department.

May 9, 1968.

Grossman & Levine, Niagara Falls, for appellant (Stanley Grossman, and Morree M. Levine, Niagara Falls, of counsel).

Gellman & Gellman, Niagara Falls, for respondents Moraca (Phillip S. Gellman, Niagara Falls, of counsel).

James Milne, Niagara Falls, for respondent City.

Before BASTOW, P.J., and GOLDMAN, DEL VECCHIO, WITMER and HENRY, JJ.

OPINION

BASTOW, Presiding Justice.

This appeal presents the issue of the respective rights to 'lost property' as between the finder thereof and the owners of a private residence in the light of Article 7--B of Personal Property Law added thereto by Chapter 860 of the Laws of 1958.

The defendants, Moraca, since the early 1950s have owned a residence in the city of Niagara Falls. In 1962 they contracted with plaintiff to build a recreation room in the basement. While attempting to remove a pipe plaintiff found $4,990. in currency hidden behind a wooden block on the floor of a cabinet-type sink. There were several bundles of bills each bound by a so-called bank wrapper. The packages appeared to have been water soaked from time to time. The bills had consecutive serial numbers. The Moracas knew nothing about the money and after prior litigation, Moraca v. Hurley, 22 A.D.2d 473, 256 N.Y.S.2d 722, it was turned over to the local Police Department.

At common law the principle was early (1722) established that the finder acquires a right in a found chattel good against the whole world except the true owner (Armory v. Delamirie, 1 Strange 505, 93 E.R. 664). Among the many subtleties that developed in this area of the law one was presented by the conflicting claims of the finder and the owner of the premises where the finding occurred. In answering this question the decisions through the years developed two further refinements. First, whether the finding occurred in a place open to the public or in a private place (Cf. Cohen v. Manufacturers Safe Deposit Co., 297 N.Y. 266, 270, 78 N.E.2d 604). Second, whether the chattels had been lost or mislaid. 'A loss is always involuntary; there can be no intent to part with the ownership of lost property. Mislaid property is property which the owner voluntarily and intentionally laid down in a place where he can again resort to it, and then forgets where he put it. Property is not 'lost' unless the owner parts with it voluntarily and unintentionally, and does not at any time thereafter know where to find it.' (1 Am.Jur.2d, Abandoned, Lost and Unclaimed Property, § 2; Foulke v. N.Y. Consolidated R.R. Co., 228 N.Y. 269, 273, 274, 127 N.E. 237, 9 A.L.R. 1384).

The general common law rule is that the finder of mislaid property on premises of another acquires no special property in it and that the right of possession as against all except the true owners is in the owner or occupant of the premises where the property is discovered. This rule is based on the legal fiction that mislaid property is presumed to have been left in the custody of the owner or occupier of the premises upon which it is found. (1 Am.Jur.2d, Abandoned, Lost and Unclaimed Property, § 23; 1 N.Y.Jur. Abandoned and Escheated Property, § 37; Dolitsky v. Dollar Savings Bank, 203 Misc. 262, 265, 118 N.Y.S.2d 65).

A further exception, however, to the common law doctrine of mislaid property (and one here pertinent) is the rule that treasure trove which by modern definition includes paper money and not only buried treasure but money hidden in places above the ground (23 Tulane L.R. 409 and cases therein cited), belongs to the finder and not to the owner of the locus (1 Am.Jur.2d, Abandoned, Lost and Unclaimed Property, § 21).

Article 7--B was added to the Personal Property Law as the result of recommendations, studies and hearings of the Law Revision Commission in successive years (Report of N.Y. Law Rev. Comm., p. 367 et seq.; N.Y.Legis.Doc., 1957, No. 65(L); Report of N.Y. Law Rev. Comm., p. 19 et seq., N.Y.Legis.Doc., 1958, No. 65(A)). The earlier document (pp. 393--428; 481--483) contains exhaustive studies of the law of lost property made at the direction of the Commission. It is made clear that the recommendations were designed to abolish the distinction between lost and mislaid property (N.Y.Legis.Doc., 1957, No. 65(L), note (5), p. 375).

This is made explicit in section 251 of the article where (subd.3) 'lost property' is defined as including lost or mislaid property and further provides that 'Abandoned property, waifs and treasure trove, and other property which is found, shall be presumed to be lost property * * *.' This section (subd. 5) further defines a 'finder' as the person who first takes possession of lost property. 'Property' is defined (subd. 1), with irrelevant exceptions, as 'money, goods, chattels and tangible personal property.'

The general scheme of the enactment (§ 252) requires the finder of property of $10. or more in...