
    Robert Oppenheimer, Respondent, v. Andrew J. Labor, as Property Clerk of the City of New York, Appellant.
    (Supreme Court, Appellate Term,
    December, 1901.)
    Bepleviy. — For gaming apparatus held by a police property clerk — Weight of evidence — Police power.
    Where the evidence, in an action brought against the property clerk of a police department to replevy gaming apparatus seized in a raid upon an alleged gambling house and held as evidence for the prosecution of the gamblers or for destruction in a proper ease, is strongly in favor of the contention that the apparatus was suitable for and had been used for gaming, a judgment in favor of the owner must be set aside as against the weight' of evidence and against the law.
    It is a proper exercise of the police power, under due process of law, to cause individuals to forego temporarily the possession of articles needed to prosecute others for crime, or even to confiscate or destroy articles, otherwise private property, in which the rights of ownership have been forfeited by use in, or devotion to, a purpose-pronounced a public nuisance by a statute.
    Appear by the defendant from a judgment in favor of the plaintiff in an action brought to recover chattels rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.
    Jones Cochrane, for respondent.
    John Whalen, Corporation Counsel (Terence Farley, of counsel), for appellant.
   MacLean, J.

In this action to replevin from the defendant, the property clerk of the police department of the city of Hew York, two roulette wheels, two roulette tables, four table legs and two crossbars, the plaintiff testified that on the 15th of January, 1901, he bought the articles, then on the ground floor of 109 West Thirty-first street, packed them into a couple of large cases and had them taken to the third floor and put into a closet which he locked and took away the key. He had never been at Ho. 109 before that day. He did not go there again till, seeing in the papers on February twenty-seventh, that there had been a raid on the premises the night before, he went to look after his wheels. He found the closet had been broken open as with a chisel and that the boxes and wheels were gone. Repairing to the central office of police he learned that they were in the possession of the defendant, who refused to give them up upon demand. This property was adapted to gaming purposes, the plaintiff said, but he had never used it nor authorized any one so to use it or known of any one so using it. It is contended for the defense that both the taking and the detention were lawful under the statutes authorizing and requiring, upon arrests for gaming, the seizure of all implements of gaming or any apparatus suitable for gaming purposes found in the possession or under the control of the person arrested, with the direction that such articles are to be brought to the property clerk, or to be delivered to the magistrate for destruction, or for delivery, as the interests of justice in the magistrate’s opinion may require, to the district attorney, for whom the property clerk is customarily the custodian.

For the defense it was shown that, on the night of the raid spoken of by the plaintiff, two men were arrested upon warrants issued upon information furnished by two persons who testified they played roulette on two roulette tables at Ho. 109 on the sixth and thirteenth of February, one of the arrested men then acting as croupier, that two tables were taken by the police on the night of the raid from the room where the playing had been and that no closet was broken open or anything taken from a closet. One witness, whose testimony was not shaken or contradicted, positively and directly identified these tables and appurtenances as the ones sought to be' replevied. The other witness saw the wheels at the station-house; they were just the same as the night he played; they seemed to be the same, but he would riot undertake to swear positively they were the same. The prisoners were held by the magistrate to await the action of the grand jury; the property seized was ordered delivered to the district attorney, to be held pending the determination of the proceedings against the accused.

The trial justice, being of opinion that the identification is not based upon any satisfactory or sufficient grounds, has found, in effect, that the wheels, examined at the station-house and seen .in use at the premises 109 West Thirty-first street, were not the wheels belonging to the plaintiff and which he here seeks to recover; that these were never used for gambling or .were never in the possession of the prisoners arrested and subsequently held, and, therefore, rendered a judgment for the recovery of the property claimed.

Serious consideration is always to be given to findings of fact by a justice who has heard and seen the witnesses. Here his finding and conclusions are against the weight of evidence and against the law.

If the apparatus brought by the police to the station-house and there examined was the same as that in use for gambling but still not that sought to be replevied by the plaintiff, what became of his wheels, if he ever had any? Except as to that taken by the raid, he has not traced anything into the hands of the property clerk. It is not to be gravely doubted on the evidence that the tables and wheels used: on the sixth and thirteenth of February are the very ones taken on the raid and delivered into the defendant’s custody. The positive and clear testimony to their identity, given by the witness who was not contradicted or impeached, is not to be disregarded. That of his fellow visitor substantially supports his account. Both are corroborated by the other facts and incidents and circumstances which bear them out, but which in turn discredit the plaintiff’s story, borne down almost to breaking by its own improbability.

Whosoevér had the legal title to the apparatus used for gambling by the men arrested, their use for such was the possession and control contemplated by the statute, requiring its seizure and retention for the purpose of evidence on the trial of the accused and for eventual destruction or return according as the arrested person may be convicted or discharged.

Interference in the public behalf with private ownership is more familiar in proceedings to forefend disease or contagion, but it is none the less a proper exercise of the police power, under due process of law, to cause individuals to forego for a time enjoyment in possession of articles needed for the prosecution of persons charged with crime or even to confiscate and destroy things, otherwise private property, in which the rights of ownership have been forfeited by use in or devotion to a purpose pronounced by a statute a public nuisance.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

McAdam, P. J., and Scott, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  