Opinion
Argued June 28, 1883
Decided October 2, 1883
Abram Kling for appellants. D.J. Dean for respondent.
The order of arrest was refused on the ground that the chattels sought to be recovered were in the custody of a criminal court, pending the prosecution of the party alleged to have stolen them. Such a temporary retention of property for the purposes of criminal justice is within the police power. It in no manner denies or affects the title of the true owner, but postpones his right of possession until the exigencies of the prosecution are satisfied. Very often the production and identification of the stolen articles are essential to the conviction of the thief, and if by a claim of title they could be taken from the possession of the criminal court before trial of the offender, it would always be possible for him to put out of the way evidence necessary to his conviction. The property clerk in the city of New York is merely the agent of the criminal court pending the prosecution, and holds the property for the time being subject to its orders. It is, therefore, in the custody of the law, and cannot be taken away until that custody is ended by a conviction or acquittal, or by an order of the magistrate permitting its surrender to the owner. ( Houghton v. Bachman, 47 Barb. 388.) The provisions of the Revised Statutes upon the subject are superseded by those of the Code of Criminal Procedure. (§§ 685, 686, etc.) Property alleged to have been stolen which comes into the custody of a peace officer must be held subject to the order of the examining magistrate. The latter may order its restoration to the owner upon proof of title and payment of expenses of its preservation, unless its temporary retention be deemed necessary in furtherance of justice. Such order "entitles the owner to demand and receive the property." Under these provisions it is apparent that, pending a prosecution of the criminal, the stolen property in the custody of an officer is in the custody of the court. The magistrate may order a return to the owner, deeming its retention until a trial unnecessary, but if he makes no such order the retention of the property must be deemed necessary to the purposes of public justice until by a conviction or acquittal the necessity is ended. In the present case no order was made by the examining magistrate, and it does not appear that a trial has been had. The plaintiff, therefore, shows no right to the immediate possession of the property as against the power of the court for police purposes. The proceedings for the claim and delivery of personal property were not intended to repeal or render nugatory the police power of retention for purposes of public justice, and the owner's right of possession cannot be enforced while the circumstances justify such retention. Lynch v. St. John (8 Daly, 143) decides nothing to the contrary. The learned court says of the rights of the property clerk: "It may be that property in his possession might be regarded as in the custody of the law where it is held upon the ground that the possession and use of it is or may be necessary to secure the conviction of the person charged with having stolen it; but after his conviction or acquittal the property clerk can have no claim to it as against the rightful owner." It is further said in that case that when confronted with the replevin papers the custodian, if there was any reason why the property for public purposes should remain in his possession, ought to apply to the court which has authority to control its own process. Substantially that has occurred in this case. The property clerk having refused a delivery, the plaintiff applied to the court which issued the process, for an order of arrest to enforce it. That application brought up the whole question, and the court declined to enforce its process against a criminal court holding the custody of the property for the purposes of criminal justice.
We think that refusal was right, and the order should be affirmed, with costs.
All concur, except ANDREWS, J., absent.
Order affirmed.