Cohen v. Manufacturers Safe Deposit Co. , 297 N.Y. 266 ( 1948 )

The majority of the court is about to hold that, if the facts upon which the parties have agreed were proved upon a contested trial of the issues, judgment might very well go for the defendant, if inferences should be drawn in support of the judgment, but that, in the consideration of a controversy submitted upon an agreed statement of facts, pursuant to sections 546-548 of the Civil Practice Act, factual inference can have no part, and that we must therefore dismiss this proceeding. We believe that no inferences of fact in addition to the facts agreed upon are necessary to a decision in this case, and that neither Feist v. Fifth Avenue Bank (280 N.Y. 189) norManhattan Storage Warehouse Co. v. Movers Assn. (289 N.Y. 82,86) require the dismissal of this proceeding.

In the Feist case (supra) the ultimate question of fact presented was whether an investment made by a trustee was a prudent one, and there was no agreement upon this question. Similarly in the Manhattan Storage Warehouse Co. case (supra), the ultimate question of fact sought to be determined was the validity of a provision in an agreement between an employer and a labor union challenged as an unreasonable restraint of competition. In neither case could the controversy be determined upon the facts agreed upon. Each was a submission of conflicting facts and circumstances upon which the court was asked to found an ultimate conclusion of fact upon which the parties had not and could not agree. This is quite a different case, one in which the Appellate Division has not found it necessary to draw any inferences of fact additional to those agreed upon but has decided a question of law presented solely upon the facts agreed upon, and that is the determination of law we are now required to review without drawing factual inferences of our own.

Lawful possession of the currency found within the safe deposit vault turns upon de facto control of the premises possessed and purposefully exercised by the safe deposit company to exclude strangers from the place where the currency was found. This control is not left to inference; it is stipulated as a fact and reinforced by legal duty imposed upon the safe deposit company as a custodian and a bailee of the property (Roberts v.Stuyvesant Safe Deposit Co., 123 N.Y. 57; Carples v.Cumberland Coal Iron Co., 240 N.Y. 187). The package of currency was found in a small booth located within the defendant's safe deposit vault, access to which was limited to its own employees and its customers, for whose exclusive use the booth was furnished. These facts establish not only the intention and the right, but the duty, to retain custody, predicated upon its control and exclusive possession of the vault and the booth where the currency was found. This right and this duty can neither be impaired nor enhanced by proof of other facts suggested as necessary in the opinion of the court. The statement of agreed facts tells us that none but customers and employees of the company were admitted. So far as the employees are concerned, their access is the access of the company and their possession is the possession of the company.

At common law possession of chattels primarily depends upon the will and intention of the occupier of premises to exclude strangers and upon de facto control. In other words de facto control is possession in law. (Pollock and Wright, Possession in the Common Law, pp. 11-16, 37-42.) Sir FREDERICK POLLOCK states (p. 40): "The finder's right starts from the absence of any defacto control at the moment of finding" and that de facto control is constituted by the occupier's general power and intent to exclude unauthorized interference.

Comparing views of Mr. Justice HOLMES and Sir FREDERICK POLLOCK, Mr. Justice BIRKETT, in Hannah v. Peel ([1945] 1 K.B., 509), said, in discussing this subject (pp. 520-521): "A difficulty, however, arises, because the rule which governs things an occupier possesses as against those which he does not, has never been very clearly formulated in our law. He may possess everything on the land from which he intends to exclude others, if Mr. Justice Holmes[*] is right; or he may possess those things of which he has a de facto control, if Sir Frederick Pollock is right." ([*]Holmes, Common Law, p. 221.) There could be no better illustration of both of these propositions than the de facto control and exclusion of strangers from the premises which the parties have agreed was exercised by the safe deposit company in this case.

We are confirmed in our conclusion that the judgment below was correct and should be affirmed by the fact that wherever the question has arisen in an American court the right of the safe deposit company to the possession and custody of currency and securities lost or mislaid in a safe deposit vault, as against all but the true owner, has been sustained. As we read these decisions they turn, not upon inferences of fact, but upon legal conclusions predicated upon facts no stronger than those agreed upon in this case. (Silcott v. Louisville Trust Co., 205 Ky. 234; Foster v. Fidelity Safe Deposit Co., 264 Mo. 89; Pyle v. Springfield Marine Bank, 330 Ill. App. 1.)

LEWIS, CONWAY and FULD, JJ., concur with LOUGHRAN, Ch. J.; THACHER, J., dissents in opinion in which DESMOND and DYE, JJ., concur.

Judgment reversed, etc.