70 N.Y.S. 474 | N.Y. App. Div. | 1901
The complaint alleges the ownership in plaintiff of a specified lot of wool; that defendant the Albany Terminal Warehouse Company took and wrongfully detains such property, that this defendant refuses, after demand, to deliver to plaintiff the possession thereof, claiming that one D. J, Hamburger & Sons Company deposited such wool with this defendant, and defendant issued warehouse receipts thereon. Judgment is asked for the immediate possession of such wool, etc. A motion was made by defendant the Albany Terminal Warehouse Company, based upon affidavits showing that the defendant had served no answer and had no beneficial interest in the property; that, as warehouseman, it received the wool from D. J. Hamburger & Sons Company ánd issued to that company negotiable warehouse receipts therefor; that the said D. J. Hamburger & Sons Company had deposited such receipts with the Utica Trust and Deposit Company as collateral to some obligation; and both the Utica Trust and Deposit Company and the D. J. Hamburger & Sons Company and Charles M. Friend, its receiver, had made a demand upon defendant for such property, together with other facts showing that such claims were substantial and made in good faith. The motion was made upon notice to all of the said parties, and no opposing affidavits were read. The facts disclosed by the verified complaint, and the affidavits disclose, a proper case for the substitution under section 820 of Jhe Code of Civil Procedure, unless the statute which the Utica Trust and Deposit Company invokes can be construed as, a-preventive obstacle in the way of this defendant’s motion. The statute referred to is chapter 633 of the Laws of 1895, and provides, among other things, that “ No warehouse company or persons or person lawfully engaged in the business of storing goods, wares and merchandise for hire shall be made a party defendant in any action concerning the title to or possession of any goods, wares or merchandise held on storage by such warehouse company, persons or person, unless such warehouse company, persons or person so holding the same on storage shall claim some right, title or interest of, in or to the same other than a lien for the lawful
The act of the Legislature referred to takes away a remedy which in its nature is a property right. The "owner of .property has a right to reclaim it or recover its value from a wrongful holder. The Legislature has no power to confer,a right in property upon another without the owner’s consent, without due process of law and without compensation. This act undertakes to' do that. Bight of- possession is a property right. To confirm in a warehouse company a possession acquired without the owner’s consent, directly or indirectly, is to deprive the owner of a property right without due process of law. This act of the Legislature lias no other purpose than- to change a wrongful possession into a lawful one; it seeks to shield -the commercial agent of a wrongdoer; it erects a barrier between the owner and his property and deprives him 'of his
The order should be sustained, with ten dollars costs and disbursements. .
All concurred ; Parker, P. J., and Smith, «L, in result.
Order affirmed, with ten dollars costs and disbursements.