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Desiderio v. D''Ambrosio

Decided: June 8, 1983.

FRANK T. DESIDERIO, PLAINTIFF,
v.
MARIE D'AMBROSIO AND SANFORD I. FELD, DEFENDANTS



Dreier, J.s.c.

Dreier

[190 NJSuper Page 425] In December 1973 plaintiff, Frank Desiderio, sold his home and a portion of its grounds to defendant Marie D'Ambrosio and her husband, and moved to Cape Coral, Florida. On the remaining portion of the Desiderio property were the objects of this

replevin action, three life-size cast-iron statues: a wolf, an elk and a hunter with two retrievers. Before closing on the sale of the house, the parties agreed that the D'Ambrosios would take the statues onto their property at such time as the adjoining plot was sold. In August 1974 plaintiff wrote the D'Ambrosios:

When we sold you our home, you agreed to allow us to leave the 3 cast iron statues . . . on your property. We anticipate moving the statues to North Carolina in the future, at which time you will allow us to enter your property to remove them.

In late 1974 Desiderio sold the adjoining portion of his property to a couple named O'Brien. In late 1974 or early 1975, pursuant to their agreement, Mrs. D'Ambrosio moved the statues onto her land at a cost to her of approximately $300. In June 1976 Desiderio spoke with Mrs. D'Ambrosio to tell her he was having difficulties in constructing his home in Hilton Head. He noted that if the statues were any problem, they could be moved to his sister's or his attorney's property. (They both lived nearby.) Thereafter there was no further contact between the parties. In 1977 Desiderio built a house on Cape Cod, intending to move the statues there.

In May 1981, five years after her last contact with plaintiff, (and over 6 1/2 years after the statues had been moved to her property), Mrs. D'Ambrosio sold the statues to defendant Sanford Feld for $3,000, paying a broker a $500 commission for the sale, and Feld removed the statues from her lawn. Delighted with his new acquisition, Feld telephoned plaintiff, whose name and address had been furnished by Mrs. D'Ambrosio, to ask him about the provenance of the statues. As the conversation advanced, Desiderio gave Feld some of the information he had called for, but towards the end of the conversation, he asserted title to the statues and challenged D'Ambrosio's authority to sell them. (He wrote to his own attorney to that effect on May 8, 1981.) Plaintiff demanded, through his attorney, that Feld return the statues, and in August 1982 Desiderio brought this

action for replevin, naming as defendants, Marie D'Ambrosio and Sanford Feld.*fn1

Both the facts of this case and the question presented are distinct from any raised in the Redmond v. New Jersey Historical Society, 132 N.J. Eq. 464 (E. & A.1942). There, the bailee knew when it took possession of a portrait that it could acquire title upon fulfillment of a certain contingency expected to be far in the future -- the death without issue of the testatrix's then fifteen-year-old son. The parties understood, therefore, that the bailment would endure for many years, and that a definite event -- the death of the testatrix's son, with or without issue -- would eventually determine the question of title. Furthermore, defendant had a contingent interest in the portrait. One question before that court was whether the plaintiffs had slept on their rights once they knew that the defendant asserted title to the portrait in breach of the terms of the bailment.

In the present case, Mrs. D'Ambrosio was to keep the statues until plaintiff called for them and he was expected to call for them when he relocated permanently, an event which neither party expected to be long in coming.*fn2 Thus the bailment here was not limited by an event certain to occur, and neither party

intended that it endure long. The question before this court is not one of the time within which an action must be brought after breach of a subsisting bailment. Rather the court is called upon to decide two novel questions: First, how long does a gratuitous bailment of indefinite term survive in the absence of any demand by the bailor and of any act by the bailee inconsistent with the bailor's title? Second, ...


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