In an action against the property clerk of the Nassau County Police Department to recover possession of an automobile or, if possession could not be given, $1,000, its alleged value, together with $4,000 damages for its detention, a judgment was entered directing defendant to deliver to plaintiff the automobile, or $100, its value at the time of the trial, if possession could not be delivered, together with $151.75, the costs and disbursements of the action.
A Nassau County Criminal attorney said that in November, 1947 one was arrested in Nassau County on a warrant for the violation of his parole on a sentence imposed in Michigan on a conviction of rape. In Nassau County bail was fixed for his appearance on a hearing. When he failed to appear, the bail was forfeited and a warrant was issued for jumping bail.
Thereafter, or in March 1948 the Nassau County police were seeking to arrest a fugitive from justice, on those warrants. The police had received information that said criminal fugitive had a 1947 Cadillac sedan, the subject of this action. They found the plaintiff in possession of the car which bore Florida license plates. He had no registration or proof of ownership in himself but claimed that he had purchased the car. The police seized the car on that day and the property clerk has possession thereof.
With the unsavory police records of the plaintiff and the fugitive and the connection between them as shown in this record, the police were warranted in seizing the car on that day. In effect, plaintiff, by bringing this action on the theory of a wrongful detention, not a wrongful taking, has conceded that the police were warranted in seizing the car.
Plaintiff testified that, in the evening before the police seized the car, he received a telephone call from the fugitive, met him, purchased the car for $4,000, paying $3,500 in cash and canceling a $500 debt, and received possession then and there. Thereafter, he obtained license plates and on the strength of a transfer of title, the record owner of the car, which transfer was allegedly executed before a notary in Georgia. When he demanded possession of the car and refused to give the police any information as to the whereabouts of the fugitive, he was arrested as a material witness and was denied possession of the car.
The notary was unable to do so and had no recollection of administering the oath to any such person or taking the acknowledgment. The Bureau of Motor Vehicles suspended the registration of the automobile at the request of the police. In part, the suspension was based (1) on the police request which was founded on the suspicious circumstances as to the ownership and change of title, and (2) on the fee paid for the registration, which was deemed to be improper inasmuch as the weight listed on the registration application was much less than the actual weight of the car.
The fugitive was sentenced to jail in Florida for armed robbery and was still serving his sentence there as late. Warrants were lodged in Florida against him by the following jurisdiction: Michigan–for parole violation, Nassau County for bail jumping, Queens County for assault and robbery, and Suffolk County–for grand larceny.
The trial court found that plaintiff had not purchased the car in 1948 or at any other time. That finding was warranted. The evidence would have warranted specific findings that plaintiff’s statements to the police in 1948 were made with a view toward secretly turning the car over to the fugitive or toward selling it and turning the proceeds over to him and thus assisting him to avoid criminal apprehension.
Plaintiff’s acts in 1948 tended to impede or prevent the course of justice, were malum in se and were against public policy. What is injurious to the interest of the public is void on the grounds of public policy. Ex turpi causa non oritur actio.
To recover, plaintiff must show a possessory right recognized by law. He must show a wrongful detention and, unless he had a general or special interest and the right of possession when the action was instituted, he is not entitled to a holding that the chattel was wrongfully detained from him. A party to an illegal agreement “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’ citing the leading cases. And it makes no difference that defendant has no title to the chattel 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’. Upon the evidence as to the acts or transactions that took place before the commencement of this action, plaintiff was not entitled to a judgment in his favor.
If plaintiff was not entitled to possession when he instituted the action, he was not entitled to a judgment awarding possession of the chattel. Assuming that the execution of the affidavit by the fugitive in June, 1953 is a sufficient basis on which plaintiff may maintain a new action in replevin, that affidavit, which was executed after commencement of the action, cannot be the basis for sustaining a judgment in favor of the plaintiff.
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