State v. Vernooy

• Decision Date: 26 March 1985
• Citation: 109 A.D.2d 682,486 N.Y.S.2d 735
• Parties: The STATE of New York, et al., Plaintiffs-Respondents-Appellants, v. Peter G. VERNOOY, et al., Defendants-Appellants-Respondents, and Sotheby Parke Bernet, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 735

486 N.Y.S.2d 735

109 A.D.2d 682

The STATE of New York, et al., Plaintiffs-Respondents-Appellants, v. Peter G. VERNOOY, et al., Defendants-Appellants-Respondents and Sotheby Parke Bernet, Inc., Defendant.

Supreme Court, Appellate Division First Department.

March 26, 1985.

H.L. Zwickel, New York City, for plaintiffs-respondents-appellants.

W.G. O'Donnell, New York City, for defendants-appellants-respondents.

Before MURPHY, P.J., and ROSS, BLOOM and KASSAL, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper), Supreme Court, New York County, entered March 2, 1984, which (1) denied defendants' motion to amend their answer to include an affirmative defense of statute of limitations with respect to the first through fourth causes of action and for summary judgment thereon, (2) granted their motion to amend their answer to assert statute of limitations as a defense to the fifth cause of action and dismissed that cause of action as barred by CPLR 213(1), (3) granted plaintiff's cross-motion for summary judgment, declaring the State's entitlement to immediate possession of the cannons, the subject of the action and, (4) directed an assessment of damages in the Supreme Court to determine the compensation to be paid to defendants Vernooy and Davidson for reasonable salvage and necessary expenses incurred in the preservation and keeping of the cannons, pursuant to Navigation Law, section 132, unanimously modified, on the law, to the extent of transferring the issue of damages to the Court of Claims for an assessment to determine the amount of compensation for such salvage and necessary expenses, and otherwise affirmed for the reasons stated by Justice Allen Murray Myers, without costs or disbursements.

This action is to determine the ownership of two 1,000 pound bronze cannons which were cast in 1748 in Woolrich, England for use by the British Royal Artillery. They were thereafter transported to the Colonies and were subsequently captured by the French on August 9, 1757, during the French and Indian War, when Montcalm overran the British troops at Fort William Henry. The French placed the cannons aboard a warship, the Muskellunge, assigned to protect Lake Champlain. The cannons were apparently thrown overboard when the French scuttled the Muskellunge on October 12, 1759, and were never recovered when the ship was subsequently raised by the British. They were found on September 21, 1968, some 209 years later, when defendants were skin-diving in shallow water in Lake Champlain, about 100 yards from the New York coastline. The State alleges in its second cause of action that, under the common law in effect at the time the Muskellunge was scuttled, enemy ships and their cargo became the property of the Crown as "spoils of war."

With one minor exception, we fully agree with the result reached at Special Term based upon a well-reasoned and most thorough discussion of the issues. The exception pertains to the tribunal to determine compensation. As held, the State is proceeding here in its sovereign capacity to assert its entitlement to possession of the cannons, claiming in the first and second causes of action that, under the common law of England, it succeeded to the rights and prerogatives of the Crown, under which salvage found in navigable waters became the property of the Crown if not claimed by the true owner within one year (1 Cooley's Blackstone, Commentaries on Law of England, at 291 [3d ed rev]; State of Florida v. The Massachusetts Co., Fla., 95 So.2d 902, cert. denied 355 U.S. 881, 78 S.Ct. 147, 2 L.Ed.2d 112). The third and fourth causes, respectively, claim possession by reason of...