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EDWARD HURLEY v. CITY NIAGARA FALLS (12/03/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43747 <http://www.versuslaw.com>; 254 N.E.2d 917; 25 N.Y.2d 687 decided: December 3, 1969. EDWARD HURLEY, RESPONDENT,v.CITY OF NIAGARA FALLS, DEFENDANT, AND SAM MORACA ET AL., APPELLANTS Hurley v. City of Niagara Falls, 30 A.D.2d 89, affirmed. Phillip S. Gellman for appellants. Stanley Grossman and Morree M. Levine for respondent. Concur: Judges Burke, Breitel, Jasen and Gibson. Judge Scileppi dissents and votes to reverse in the opinion in which Chief Judge Fuld and Judge Bergan concur.


Hurley v. City of Niagara Falls, Concur: Judges Burke, Breitel, Jasen and Gibson. Judge Scileppi dissents and votes to reverse in the opinion in which Chief Judge Fuld and Judge Bergan concur.

 Order affirmed, without costs, on the opinion at the Appellate Division.

Disposition

Order affirmed, etc.

Scileppi, J. (dissenting). Article 7-B (ยง 252, subd. 1) of the Personal Property Law provides in relevant part that "any person who finds lost property of the value of ten dollars or more or comes into possession of property of the value of ten dollars or more with knowledge that it is lost property * * * shall, within ten days after the finding or acquisition of possession thereof, either return it to the owner or report such finding or acquisition of possession and deposit such property in a police station or police headquarters of the city where the finding occurred".

In the latter part of 1962 the appellants, Mr. and Mrs. Moraca, engaged Edward Hurley, the respondent herein, to remodel the basement of their home located in the City of Niagara Falls. While attempting to remove a pipe under a sink, Hurley found $4,990 in currency hidden behind a block on the floor of the cabinet enclosing the sink. The Moracas told Hurley that the money was not theirs and they had no idea how it had gotten there. Hurley then suggested and the Moracas agreed that for the purposes of safekeeping, Hurley should place the money in the safe at the Niagara Falls Air Force Base where Hurley was a full-time civilian employee.*fn1 Hurley, however, did not take the money to the Base but rather took it home with him and sometime thereafter, apparently long after the 10-day statutory period had elapsed, unsuccessfully attempted to spend some of the money in a department store.

On cross-examination Hurley testified:

"Q. Did somebody representing the store call the Police Department? A. Yes, sir.

"Q. What did you tell the police officer in reference to this money? A. I didn't tell him anything, sir. I asked him if I could contact my attorney.

"Q. Did the police officer ask you where you got the money or found the money? A. Yes, he asked me where I got the money from.

"Q. What did you tell the police officer? A. I told him at the time that I might have got it in change.

"The Court: May have got it in change?

"The Witness: In change, cashing a check. By Mr. Gellman:

"Q. You did not tell the police officer the truth, is that correct? A. I did not tell the police officer the truth, yes, sir."

Sometime thereafter, apparently in 1964, the appellants instituted an action against Hurley for conversion. It was not until after the Appellate Division unanimously affirmed the dismissal of the action as being premature (22 A.D.2d 473) that the money in question was finally turned over ...


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