Opinion
January 30, 1950.
In a proceeding in the nature of mandamus to compel appellants, the Police Commissioner for the County of Nassau and the Property Clerk of Nassau County Police Department, to turn over to petitioner certain money, order directing said officials to turn over the money reversed on the law and the facts, with $50 costs and disbursements, and petition dismissed on the law. The money in question was found by the arresting officer upon petitioner's person with slips representing bets on horse races when he was arrested and charged with the crime of book-making (Penal Law, § 986), to which crime he pleaded guilty and was sentenced. Claiming that a portion of the money was not money acquired by him from betting or gambling activities, he seeks by this proceeding to compel the return of that portion of the money so taken from him. Such proceeding is not available to redress an alleged private wrong when other remedies are available. ( Matter of Towers Management Corp. v. Thatcher, 271 N.Y. 94, 97; Matter of Colonial Beacon Oil Co. v. Finn, 245 App. Div. 459, 461, affd. 270 N.Y. 591.) Moreover, petitioner failed to prove that he is the owner of the money sought to be recovered or lawfully entitled to its possession. ( Hofferman v. Simmons, 290 N.Y. 449; Costello v. Simmons, 269 App. Div. 823, affd. 295 N.Y. 801.) Carswell, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.