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July 29, 1970

Beverly LAPREASE, Individually and on behalf of all other persons similarly situated, Plaintiffs,
RAYMOURS FURNITURE COMPANY, Inc., Individually and on behalf of all other persons similarly situated, and Louis Engle and Patrick Corbett, individually and as non-judicial personnel and enforcement officers of the Courts of the State of New York and on behalf of all other persons similarly situated, Defendants. Clifford LAWSON, Judith Lawson and Joan Messler, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Michael GALVIN and Earl Stoddard, In their capacity as City Marshals of the City of Albany, on behalf of themselves and all others similarly situated, Edward M. Fischer, in his capacity as Sheriff of Albany County, on behalf of himself and all others similarly situated, and Louis J. Lefkowitz, in his capacity as Attorney General of the State of New York, Defendants

The opinion of the court was delivered by: PORT

PORT, District Judge.

In the above-entitled actions, consolidated for hearing, the plaintiffs seek to enjoin the defendants from enforcing Article 71 *fn1" of the New York Civil Practice Law and Rules. That Article governs the procedure in a replevin action, and permits the prehearing seizure of the subject matter of the action without the intervention or order of a judicial officer.

Temporary restraining orders were issued in each case restraining the defendants from making seizures pursuant to the provisions of Article 71 *fn2" and three-judge courts were designated and convened pursuant to 28 U.S.C. § 2281 et seq.

 After hearing argument, the three-judge court in each case continued by stipulation injunctions against seizure from the named plaintiffs by the named defendants pursuant to the provisions of Article 71, except when done by an order of a judge or court of competent jurisdiction. The court also refused to continue the actions as class actions. It was stipulated upon the oral argument that the application for temporary and permanent injunctive relief be heard and decided upon the record before the court without the taking of any oral evidence.


 Article 71 provides for the bringing of an action "to try the right of possession of a chattel," historically known as a replevin action. It mandates that the Sheriff, upon delivery to him by the plaintiff in the action of an affidavit, undertaking and requisition [which is deemed to be the mandate of the court], seize the chattels described in the affidavit. If an action to recover the chattel has not been commenced, the statute requires that there be additionally delivered to him a summons and a complaint.

 The requisition directs the Sheriff of any county where the chattel is found, to seize it. The Sheriff is obliged to serve upon the person from whose possession the chattel is seized, "a copy of the affidavit, requisition and undertaking delivered to him by the plaintiff." The statute does not by its terms require the Sheriff to serve the summons and complaint, which may have been delivered to him by the plaintiff-creditor. Moreover, the person in whose possession the chattel is found may not necessarily be a defendant in the action. Therefore there is no requirement that a summons and complaint be served upon the person from whose possession the chattel is taken, or upon anyone else at the time of such taking. Without fixing a time therefor, the statute requires that the affidavit, requisition and undertaking be served upon the defendants named in the action, unless the court otherwise orders.

 The affidavit to be delivered to the Sheriff, among other things, shall identify the chattel to be seized and state the value thereof. The undertaking is in a specified amount "not less than twice the value of the chattel stated in the plaintiff's affidavit," conditioned to secure the return of the chattel to any person to whom possession is awarded or the payment of a judgment against the person giving the undertaking.

 The Sheriff retains possession of the seized chattel for a period of three days after which he delivers it to the plaintiff, unless in the meantime a person claiming the right to possession has reclaimed the chattel by filing with the Sheriff a notice of reclaimer, an undertaking in the same amount as the plaintiff's, and an affidavit similar to that required of the plaintiff. The Sheriff retains the chattel for three days after which he delivers it to the reclaimer. At any time the chattel is in the possession of the Sheriff, the chattel may be ordered impounded by the court on motion and cause shown.

 C.P.L.R. § 7110 provides that the Sheriff shall forcibly enter a building or enclosure in order to search for and seize the chattel.


 Briefly stated, the plaintiff Laprease alleges that the defendant Raymours Furniture Co., Inc., has delivered an affidavit, requisition, undertaking and summons and complaint to the defendant Engle, Marshal for the City of Syracuse, requiring him to seize a bed, box-spring and mattress, a highchair, a chest, an eleven piece dinette set, and other household furnishings.

 On January 19, 1970, the defendant Engle, accompanied by two representatives of the defendant Raymours, attempted to seize the above-mentioned articles and advised the plaintiff that if she did not release them a forcible entry into her apartment would be made. A representative of the defendant Raymours agreed to hold the seizure in abeyance upon certain specified payments being made by the plaintiff Laprease. Mrs. Laprease, however, states that she is on welfare and unable to make the required payments. Consequently, she alleges that she is in "immediate danger" of having these articles which are "necessary and essential for the healthy and proper living arrangements for herself, her [ill] husband and her ten children * * * forcibly and illegally seized."

 Mrs. Laprease also alleges that she has lived in the State of New York all her life, in the City of Syracuse for the past 16 years, and at her present address for the past 7 years; that she has no intention of removing the chattels pending the outcome of the replevin action on the merits, and that she believes that she has a meritorious defense to the action; that a pretrial seizure would irreparably injure her in that she does not have money to post a bond to reclaim the chattels and that she is financially unable to replace them. She further alleges that the threatened action of the defendants Engle and Raymour place her in immediate danger of being subjected to an illegal search and seizure and a consequent unlawful invasion of her privacy.

 Clifford and Judith Lawson, plaintiffs in 70-CV-50, alleged that they reside with their children in the City of Albany; that their sole income consists of $77.00 a week derived from the employment of Clifford; that they have no assets other than the household furniture, including a stove and refrigerator, all of which was purchased "on time" from Henry S. Mantell Finer Furniture (Mantell) in October of 1968; that payments of $40.00 bi-weekly, in accordance with a purchase agreement, were made for six weeks, at which time Clifford became ill.

 In March of 1969 a representative of Mantell's promised that they would not repossess the chattels if the plaintiffs would pay $20 every two weeks. It is alleged that these payments were made; nevertheless, a representative of Mantell's delivered an affidavit, requisition, and undertaking together with a summons and complaint, to the Sheriff of Albany County pursuant to Article 71. On or about February 16, 1970, the Sheriff seized the goods pursuant to Article 71. The plaintiffs allege that they were not able, financially, to acquire a surety or to post a bond in order to reclaim the goods. On February 18, 1970, Chief Judge Foley signed a temporary restraining order directing the return of the Lawson's chattels, and restraining further Article 71 action against them, pending the determination of the action.

 Plaintiff Messler resides in the Village of Green Island, Albany County, New York, with her children and is a recipient of Aid for Dependent Children public assistance, and has no income other than that provided by public assistance. Therefore, she alleges that it is impossible for her to post a bond or obtain a surety in order to reclaim.

 In September of 1968, Messler's husband bought on time from Mantell's certain kitchen furniture, a rug, three end-tables, lamps, a chair, and a record player. The husband stopped making payments on these goods in August of 1969. Thereupon, the plaintiff Messler entered into an oral agreement with Mantell's whereby she became the owner of the goods and would undertake the remaining payments on a deferred basis. However, a representative of Mantell's has informed her that they intend to repossess the goods and that if she doesn't surrender them voluntarily, then they will get a "court order."

 The defendants, Marshals and Sheriffs, are the officers obliged under Article 71 to execute the requisition which "shall be deemed the mandate of the court," by seizing the chattels described in the affidavit; the other defendants are plaintiffs in the replevin actions, and also the Attorney General of the State of New York.

 Other purchasers of household articles "on time", reciting circumstances similar to the named-plaintiffs in Laprease, withdrew their applications to intervene in that action upon the agreement of the vendors involved not to avail themselves of the prejudgment seizure provisions of Article 71.


 The plaintiffs contend that Article 71 is unconstitutional, in that:

 (1) It provides for a search and seizure and resultant invasion of privacy, without a warrant, in violation of the Fourth and Fourteenth Amendments;

 (2) It violates the Due Process Clause of the Fourteenth Amendment by providing for the taking of property prior to notice and hearing, and

 (3) It is violative of the Equal Protection Clause of the Fourteenth Amendment, since it allegedly is a law of general applicability which discriminates against those whose financial condition makes it impossible for them to file the undertaking required to repossess the chattels seized.

 The defendants, *fn3" and principally the amici curiae counter that:

 (1) Article 71 does not deprive persons of their property without due process of law, pointing to the safeguards contained in the Article itself and to the approval which tradition and time have given to the replevin device; *fn4"

 (2) Article 71 does not deprive litigants of the equal protection of the laws -- it is contended that the inability of litigants to afford themselves of the Article's safeguards because of their poverty does not of itself render the Article unconstitutional on equal protection grounds. The State is not constitutionally responsible for the economic inequality of the parties in civil matters, and

 (3) § 7110 of Article 71 does not offend the Fourth Amendment because (a) these are civil not criminal proceedings and the Amendment is not applicable, and (b) even if it is established that a search and seizure take place under Article 71, the same are not unreasonable.


 Jurisdiction is alleged to be based upon 28 U.S.C. §§ 1343(3), 1343(4), 2201, 2202, 2281, 2284, and 42 U.S.C. § 1983. None of the parties have seriously questioned the court's jurisdiction.

 Upon the oral argument, the court sua sponte, raised the question of whether Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) was controlling and defeated jurisdiction because the actions might deal solely with property rights. Having considered the question, we hold Eisen, supra, inapposite.

 The Fourth Amendment question that is present in these cases is clearly a "right or immunity [involving] personal liberty, not dependent for its existence upon the infringement of property rights." Eisen v. Eastman, 421 F.2d at 564, quoting from Hague v. C.I.O., 307 U.S. 496, 531, 59 S. Ct. 954, 83 L. Ed. 1423 (1939). In regard to the "personal liberty" aspect, see Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).

 Further, "the instant actions allege deprivation of procedural due process, a civil right, which may ultimately lead to the loss of a property right," and jurisdiction would also appear proper on the due process contentions. Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. Apr. 29, 1970). In any event, since this court has jurisdiction over the Fourth Amendment claims, pendent jurisdiction over the due process and equal protection claims exists.


 If the restraints of the Fourth Amendment are held to apply to an action under Article 71, it would not require the citation of any authority to demonstrate that a search or seizure made pursuant to and in reliance upon the provisions of that Article, would violate that Amendment's constitutional protections.

 The commands of § 7110 that "[if] a chattel is secured or concealed in a building or enclosure and is not delivered pursuant to his demand, the sheriff shall cause the building or enclosure to be broken open and shall take the chattel into his possession," and § 7102 that he "shall seize a chattel without delay when the plaintiff delivers to him an affidavit, requisition and undertaking," -- all without a warrant and without the intervention of a judicial officer -- hardly comport with the Fourth Amendment's guarantee that "[the] right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation."

 A search and seizure without a warrant can be made only in exceptional circumstances, and the search of a private dwelling without a warrant is presumptively "unreasonable." See e.g. James v. Goldberg, 303 F. Supp. 935, 940 (S.D.N.Y. 1969) (three-judge court) probable jurisdiction noted sub nom. Wyman v. James, 397 U.S. 904, 90 S. Ct. 921, 25 L. Ed. 2d 85 (1970), and the cases cited therein.

 The argument that the Fourth Amendment does not apply, is supported by neither good sense nor law. If the Sheriff cannot invade the privacy of a home without a warrant when the state interest is to prevent crime, he should not be able to do so to retrieve a stove or refrigerator about which the right to possession is disputed. Nor should he have any greater right to make a seizure of these or similar chattels not within a building or enclosure by virtue of a requisition " deemed to be the mandate of the court," *fn5" (emphasis added), but which in fact is the mandate of the plaintiff's attorney issued without the examination or approval of an intervening magistrate, and resulting in a taking against the will of the owner. *fn6" "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." Camara v. Municipal Court, 387 U.S. 523, 530, 87 S. Ct. 1727, 1732, 18 L. Ed. 2d 930 (1967).

 The Fourth Amendment does not exist simply as a shield to prevent intrusions in criminal matters, but is a basic protection available to all, in matters both civil and criminal. See Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967); James v. Goldberg, supra. Further, if the possessor should resist or hinder a search and seizure provided for under § 7102 or § 7110, then he could be subject to criminal prosecution pursuant to N.Y. Penal Law, McKinney's Consol. Laws, c. 40, § 195.05. *fn7"

 Accordingly, it is abundantly clear that § 7102 and § 7110 fail to conform to the strictures of the Fourth Amendment, made applicable by the Fourteenth Amendment, and are unconstitutional on their face.


 Insofar as Article 71 permits a prehearing seizure, possibly without notice to the defendant, *fn8" it violates due process, in addition to constituting an illegal search and seizure. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 ...

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