
    Cass Carr, Appellant, v. John E. Hoy, Individually and as Sheriff of Westchester County, Respondent.
    Submitted October 15, 1956;
    decided January 10, 1957.
    
      
      Emanuel Bed field for appellant.
    
      Harry G. Herman, County Attorney (Arthur T. Conniclc of counsel), for respondent.
   Desmond, J.

This is a conversion, suit against a sheriff. Judgment went for defendant on the ground that the money-taken and withheld from plaintiff by the sheriff was the proceeds of a criminal act committed by plaintiff. Plaintiff had collected fees of $10 each from a number of persons for the privilege of attending a farm outing and of there photographing female models, some of whom posed in the nude. The sheriff appeared on the scene, arrested all concerned and took from plaintiff, and kept, the money which plaintiff had collected from his customers. Everyone except plaintiff pleaded guilty to disorderly conduct. Plaintiff pleaded guilty to a violation of section 43 of the Penal Law on an information which charged him with outraging public decency, and paid a $50 fine. The sheriff’s refusal to give back to plaintiff the ticket moneys brought on this trover suit. We think the courts below were right in dismissing the complaint.

“ It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose ” (Stone v. Freeman, 298 N. Y. 268, 271, citing the leading cases). The money plaintiff sues for was the fruit of an admitted crime and ‘ ‘ no court should be required to serve as paymaster of the wages of crime ” (Stone v. Freeman, supra, p. 271). And it makes no difference that defendant has no title to the money since the court’s concern “ is not with the position of the defendant ’ ’ but with the question of whether ‘ ‘ a recovery by the plaintiff should be denied for the sake of public interests ’ ’, a question which is one “ of public policy in the administration of the law ” (Flegenheimer v. Brogan, 284 N. Y. 268, 272). That public policy is the one described in Riggs v. Palmer (115 N. Y. 506, 511-512): “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.”

This court has already held that this controlling public policy forbids recovery, in a civil suit against police officers, of money seized in gambling raids, since for the courts to grant such a judgment to the lawbreaker would be to ‘ ‘ recognize and protect an outlawed business, and give their sanction to titles and possessory rights founded only on lawbreaking ” (Hofferman v. Simmons, 290 N. Y. 449, 457). Of course, Hofferman’s was a gambling case but denial of recovery there was not because of any special disabilities as to gambling. It was the application to a gambling situation not of any particular statutes but of the settled public policy of New York. Indeed, the Hofferman opinion notes that there is no New York statute containing any directions as to the disposition of monies seized from gamblers by the police ” (supra, p. 457). Lack of such a statute, said this court, “ does not enlarge the rights of professional gamblers ” or “ confer on them ” rights which the courts must recognize as to moneys proven to be the receipts of a criminal business (Hofferman v. Simmons, supra, p. 457).

Denying plaintiff a judgment here is no more a forfeiture or a confiscation or the exaction without due process of a fine or penalty than was the similar disposition of Hofferman’s case. We are not validating the seizure of a citizen’s property without warrant of law. We are not awarding this money to the sheriff. The defense of illegality “ is allowed not as a protection to a defendant, but as a disability to the plaintiff ” (Reiner v. North Amer. Newspaper Alliance, 259 N. Y. 250, 256). We are closing our courts to one who would prove his own wrongdoing as a basis for his supposed “ rights ”.

This appeal was taken as of right and without leave “ pursuant to section 588, subd. 1(a) of the Civil Practice Act ”, that is, on the theory that there is ‘‘ directly involved the construction of the constitution of the state or of the United States ’ ’. What we have said herein raises doubts, of 'course, as to whether any constitutional question of any substance is before us. But we affirm rather than dismiss the appeal (see Matter of MacDonald v. Browne, 294 N. Y. 263; Matter of Madison Ave. Offices v. Browne, 294 N. Y. 811) since defendant made no motion for dismissal and since one Judge of this court, dissenting, is of the opinion that there was here a denial of due process.

The judgment should be affirmed, with costs.

Van Voorhis, J.

(dissenting). Unless money or other property is contraband as defined by statute, I think that it may not be seized and confiscated. Appellant is a professional photographer. He was fined $50, having pleaded guilty to the commission of a misdemeanor under section 43 of the Penal Law. The charge was outraging public decency by arranging for the photographing by his clients of some women in the nude. In addition to the fine, $149 of defendant’s money was seized by the sheriff, consisting of traveling and other expenses and fees paid to him (at the rate of $10 apiece) by the persons who were to take the pictures. This is a different situation from that presented in Hofferman v. Simmons (290 N. Y. 449) where professional gamblers were denied recovery from the property clerk of the police department of money which had been paid to them as wagers. This court pointed out that under section 994 of the Penal Law, one who has wagered with’a gambler “ never parted with the title to his money ” (People v. Stedeker, 175 N. Y. 57, 62). Consequently it was held that professional gamblers could not replevin money which did not belong to them. The Legislature has provided for forfeiture in definite instances, as in the case of commodities exposed for sale on Sunday (Penal Law, § 2149); lotteries (Penal Law, §§ 1380, 1384); slot machines (PenalLaw, §§ 984-985); usury (Ceneral Business Law, § 373). Such offending property may be forfeited without violating due process, as in the Federal realm in case of vessels engaged in smuggling or of automobiles transporting liquor in violation of law (United States v. One Ford Coupe, 272 U. S. 321). In such instances, the offending article is treated by statute as a public nuisance.

No statute directs the forfeiture of this money belonging to appellant, nor renders his money a nuisance. Its forfeiture cannot be deemed additional punishment, inasmuch as It is the legislature, not the court, which is to define a crime, and ordain its punishment ” (Marshall, Ch. J., in United States v. Wiltberger, 5 Wheat. [U. S.] 76, 95; Morgan v. Devine, 237 H. S. 632, 641). Yet that is the effect of what has occurred. The forfeiture of appellant’s $149 augments his fine of $50, with the consequence that he has, in effect, been fined $50 by the magistrate and $149 by the sheriff for the same offense. In my view, the confiscation of this sum of $149 belonging to appellant constitutes deprivation of property without due process of law under the Fourteenth Amendment to the Constitution of the United States, and section 6 of article I of the New York State Constitution.

The judgment appealed from should he reversed and judgment granted in appellant’s favor in the sum of $149.

Conway, Ch. J., Dye, Fuld, Froessel and Burke, JJ., concur with Desmond, J.; Van Voorhis, J., dissents in an opinion.

Judgment affirmed.  