This proceeding challenges the jurisdiction of the Police Commissioner and the property clerk of the New York City Police Department to subpoena and examine the petitioner in the exercise of their investigatory powers as to moneys in their custody, it being claimed by the petitioner that such powers do not survive the commencement of a civil suit to determine the same issue.
When the petitioner was arrested on a charge of vagrancy, he had in his possession the sum of $2,600 in cash, which the arresting officer said the petitioner had stated was being delivered to a bookmaker, and he was required to deposit it with the property clerk (Administrative Code, § 435-4.0, subd. b) who still has it in his custody. Upon acquittal of the vagrancy charge and release from custody, the petitioner demanded return *Page 344 of the money and was refused. He thereupon commenced an action in the City Court of the City of New York for return of the money and conversion. The City joined issue by filing an answer and the case was set for trial.
Before the case was reached for trial, the property clerk served upon the petitioner a demand to appear before him for examination with reference to the subject matter of the pending action. The petitioner refused to comply. Whereupon the Police Commissioner issued a subpoena (Administrative Code, § 434a-33.0) requiring the petitioner to appear before the property clerk on a date and time certain "to answer orally as to any facts relative to the justness of a certain account or claim against the Property Clerk * * * for $2,600.00 * * *".
The instant proceeding was thereupon commenced to quash the subpoena.
The use of the word "claims" in the statute conferring power on the property clerk to determine ownership of funds in his custody (Administrative Code, § 435-4.0, subd. a, par. 3) and the absence of the words "any action or proceeding" as used in the statute relating to the establishment of a lawful right (Administrative Code, § 435-4.0, subd. f) clearly indicate a legislative intent to draw a distinction between claims submitted in person to the property clerk and actions and proceedings brought through the medium of a civil process in a court of law. Had the Legislature intended otherwise it could have said so by the simple device of including the words "action or proceeding" (Reynolds v.Village of Nyack, 258 App. Div. 667). These words cannot be read into the statute for by so doing the Commissioner of Police and the property clerk could circumvent the judicial process by proceeding to a disposition of the issue as a claim, which, of course, is not the legislative intent.
That a distinction was contemplated by the Legislature is further strengthened by the statutory requirement that "in any action or proceeding * * * a claimant * * * shall establish that he has a lawful title or property right in such * * * money and lawfully obtained possession thereof and that such * * * money was held and used in a lawful manner" (Administrative Code, § 435-4.0, subd. f), which thus defines the elements of a prima facie case necessary to establish a lawful property right in a civil suit. *Page 345
The service of the answer by the Corporation Counsel put the various elements essential to establish the petitioner's lawful right to the money in issue for determination by the court, the judgment of which the property clerk was bound to accept.
By limiting the property clerk's investigatory powers to "claims" not in issue the statute does not leave him without a remedy for "in any action or proceeding" there is still available to him, in a proper case, the examination before trial as prescribed by the Civil Practice Act. (Civ. Prac. Act, § 288 etseq.)
The order appealed from should be affirmed, with costs.
LOUGHRAN, LEWIS, DESMOND and THACHER, JJ., concur with LEHMAN, Ch. J.; DYE, J., dissents in opinion in which CONWAY, J., concurs.
Order reversed, etc.