American Society for Prevention of Cruelty to Animals
Conti v. American Society for Prevention of Cruelty to Animals, 353 NYS 2d 288 (1974) Chester is a parrot. He is fourteen inches tall, with a green
coat, yellow head and an orange streak on his wings. Red
splashes cover his left shoulder.
Chester is a show parrot,
used by the defendant ASPCA in various educational
exhibitions presented to groups of children.
• On June 28, 1973, during an exhibition in Kings Point, New
York, Chester flew the coop and found refuge in the tallest
tree he could find. For seven hours the defendant sought to
retrieve Chester. Ladders proved to be too short. Offers of
food were steadfastly ignored.
With the approach of
darkness, search efforts were discontinued. A return to the
area on the next morning revealed that Chester was gone.
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• On July 5th, 1973 the plaintiff, who resides in Belle Harbor,
Queens County, had occasion to see a green-hued parrot with a
yellow head and red splashes seated in his backyard. His offer
of food was eagerly accepted by the bird. This was repeated on
three occasions each day for a period of two weeks. This
display of human kindness was rewarded by the parrot’s finally
entering the plaintiff’s home, where he was placed in a cage.
• The next day, the plaintiff phoned the defendant ASPCA and
requested advice as to the care of a parrot he had found.
Thereupon the defendant sent two representatives to the
plaintiff’s home. Upon examination, they claimed that it was
the missing parrot, Chester, and removed it from the plaintiff’s
home.
• Upon refusal of the defendant ASPCA to return the bird, the
plaintiff now brings this action in replevin.
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• The issues presented to the Court are twofold: One, is the
parrot in question truly Chester, the missing bird? Two, if it
is in fact Chester, who is entitled to its ownership?
• The representatives of the defendant ASPCA were
categorical in their testimony that the parrot was indeed
Chester, that he was unique because of his size, color and
habits. They claimed that Chester said ‘hello’ and could
dangle by his legs.
• During the entire trial the Court had the parrot under close
scrutiny, but at no time did it exhibit any of these
characteristics. The Court called upon the parrot to
indicate by name or other mannerism an affinity to either
of the claimed owners. Alas, the parrot stood mute.
15
Upon all the credible evidence the Court does find as a fact that
the parrot in question is indeed Chester and is the same parrot
which escaped from the possession of the ASPCA on June 28,
1973.
The law is well settled that the true owner of lost property is
entitled to the return thereof as against any person finding
same. (In re Wright’s Estate, 15 Misc.2d 225, 177 N.Y.S.2d 410)
(36A C.J.S. Finding Lost Goods s 3).
This general rule is not applicable when the property lost is an
animal. In such cases the Court must inquire as to whether the
animal was domesticated or ferae naturae (wild).
Where an animal is wild, its owner can only acquire a qualified
right of property which is wholly lost when it escapes from its
captor with no intention of returning.
Therefore, the issue is simply whether Chester was
domesticated or wild.
16
In Amory v. Flyn, 10 Johns.(N.Y.) 102, plaintiff sought to recover
geese of the wild variety which had strayed from the owner.
In
granting judgment to the plaintiff, the court pointed out that
the geese had been tamed by the plaintiff and therefore were
unable to regain their natural liberty.
This important distinction was also demonstrated in Manning v.
Mitcherson, 69 Ga. 447, 450—451, 52 A.L.R. 1063, where the
plaintiff sought the return of a pet canary. In holding for the
plaintiff the court stated
‘To say that if one has a canary bird,
mocking bird, parrot, or any other bird so kept, and it should
accidentally escape from its cage to the street, or to a
neighboring house, that the first person who caught it would be
its owner is wholly at variance with all our views of right and
justice.’
The Court finds that Chester was a domesticated animal,
subject to training and discipline.
17
Thus, the rule of ferae naturae does not prevail and
the defendant as true owner is entitled to regain
possession.
The Court wishes to commend the plaintiff for his
acts of kindness and compassion to the parrot
during the period that it was lost and was gratified
to receive the defendant’s assurance that the first
parrot available would be offered to the plaintiff for
adoption. Judgment for defendant dismissing the
complaint without costs.
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Answer These Questions:
1. What are the material facts?
2. What is the procedural history?
3. What rule(s) is the court applying?
4. What rules does the court synthesize? Use this
format:
“The true owner of lost property is . . . unless . . . but”
5. What is the legal issue?
