218 A.D. 584 | N.Y. App. Div. | 1926
The plaintiff, a hotelkeeper at Norwalk, Conn., purchased from the Finance and Trading Company in the spring of 1922 thirty barrels of whisky at that time located at Havre, France. The whisky was shipped to the port of New York upon the White Star liner Olympic. The day before its arrival at the New York port the plaintiff contracted to sell the thirty barrels of whisky to the Chauhtemoc Trading Company of the city of Mexico. The plaintiff employed a firm of custom house brokers to attend
It is the main contention of the defendant upon this appeal that at the time of the loss of the twenty-seven barrels of whisky from the defendant’s warehouse, the plaintiff had no title thereto, and that so far as the plaintiff was concerned, the whisky was without value to him and that, therefore, he suffered no damage by reason of its loss. The liquor in question was brought by the plaintiff to the port of New York openly and without subterfuge and under authority of the prohibition officials. There were introduced in evidence by the plaintiff, under objection of counsel for the defendant that the evidence was “ incompetent, irrelevant and immaterial,” certain documents produced by the United States customs officials as records contained in the office of the Collector of Customs at New York. The first of these letters, signed by the Acting Chief, Division of Customs, was as follows:
“ Treasury Department, Office of the Secretary, “Division of Customs.
“Washington, June 24, 1922. ’
,, T , , , “ In reply refer to 108377.
“ The Collector of Customs, New York, N. Y.
“ Sir.—I am enclosing for your information a copy of a letter addressed by the Prohibition Commissioner to Harry C. Wood & Company, 2 Rector Street, New York City, regarding the trans
“ Respectfully,
“J. D. NEVIUS,
“Acting Chief, Division of Customs.”
“ Enclosure No. 22724.”
The letter referred to in the foregoing communication was addressed to Harry C. Wood & Company, plaintiff’s custom house broker, and signed by R. A. Haynes, Prohibition Director, and was as follows:
“ Copy.
“June 20, 1922.
“ Harry C. Wood & Company,
“ 2 Rector Street, New York City, N. Y.
“ Gentlemen.— Reference is made to your letter under date of June 19, 1922, and to visits by your representatives, relative to a shipment from France of 30 barrels of American whiskey to Chauhtemoc Trading Company, Mexico City, Mexico.
“ The correspondence from the said concern indicating that the whiskey is to be used for medicinal purposes, the whiskey is to be shipped via New York, at which place it is to be transferred from one vessel to another., the transportation from New York to Vera Cruz being by the Ward Line Steamer Esperanza,
“A communication has been addressed to the Federal Prohibition Director at New York City, advising him that if the facts are as alleged, and there is nothing indicating that the shipment is not bona fide, this office is willing that the liquor shall be transferred in New York and forwarded as indicated.
“ Respectfully,
“ (Signed) R. A. HAYNES,
“Prohibition Director.”
Aaron H. Newman, a clerk in the Warehouse Division of the United States Customs House at New York city, testified that these documents were records of the United States Customs House in New York. They were produced by the government officials and were received in evidence without specific objection on the part of counsel for the defendant that they were not properly proven, counsel objecting to the same merely upon the ground that they were incompetent, irrelevant and immaterial. I think the letters were properly received in evidence by the trial court. It would appear from these records of the Treasury Department, Division of
The appellant, in support of its contention that the liquor in question was without value to plaintiff and that, therefore, plaintiff suffered no damage because of its loss, relies upon the provision of the so-called Volstead Act that “ no property rights shall exist in any such liquor or property,” viz., liquor imported without the written consent of the Commissioner of Internal Revenue. It seems to me, notwithstanding such provision of the Volstead Act, that no property right shall exist in such liquor, that, nevertheless, as between the defendant warehouseman and the plaintiff, the plaintiff was the owner of the liquor in question. I do not.think it lies in the mouth of the defendant to question such ownership.
In passing upon defendant’s motion to set aside the verdict of the jury the trial court rendered an opinion in which the court held that the provision of the Volstead Act declaring that no property right existed in liquor imported without proper consent was for the purpose merely of aiding the prohibition officials in the performance of their duties. (125 Misc. 791.) The Court of Appeals of this State in People v. Otis (235 N. Y. 421) seems directly to have disposed of the question as to the property rights in and value of liquor illegally possessed. In People v. Otis the defendant was indicted for stealing a quantity of whisky and was convicted of petit larceny thereof. Judge Andrews, writing for a unanimous court, defined “ larceny ” as the illegal taking of some article of value with the intent to deprive the true owner of his property or to appropriate it to the use of the taker or another, and states that value in and ownership of the thing taken were essential elements of the crime. Judge Andrews further. said: “ With certain exceptions the possession of intoxicating liquor is now' unlawful. Liquor so possessed may not be sold, transported or delivered to any one. It may be seized by the government. The possessor, not being able to make any legal use of.it, it is said the liquor itself has no value. This is, however, to make the value of a chattel to its possessor the test as to whether it is the subject of larceny. Such is not the rule. (People v. Gilbert, 163 Mich. 511.) It is enough if the object taken has inherent value. (Commonwealth v. Riggs, 14 Gray, 376.) No one can doubt that whisky has such value. It may be sold by the government and the proceeds covered into the treasury. It may be sold
“ The statute further provides that ‘ no property rights shall exist ’ in liquor illegally possessed. There can be no larceny of property not subject to ownership. How then, it is asked, may there be larceny of such liquor? If we give the broadest possible construction to these words there is no answer, for it must be conceded that to enforce the recent amendment to the Constitution, Congress may declare that to steal liquor shall no longer be a crime. * * *
“ The truth is that sections 25, 26 and 27 are but three of a number of sections providing remedies by which the statute may be more conveniently enforced. A separate sentence or clause is not to be wrenched from its context. The sections are to be construed as a whole in the light of their general object. We start with the presumption that the possession of liquor is illegal. (Sec. 33.) Such liquor may be seized. * * * Mingled as it is with these provisions the clause as to property rights was clearly intended solely to protect government officials in the exercise of their duties. * * * However broad the language used its effects should be
confined to the purposes for which it was intended. Property rights in such liquor are not forever ended. They pass to the government. They pass from it to a purchaser. Section 25 is merely a police regulation, adapted to aid the enforcement of the prohibition law and to be applied with that end in view. The intention of Congress went no further.”
It seems to me, from this very clear pronouncement of the Court of Appeals, that it is futile for the defendant to claim that the plaintiff had no property rights in the liquor lost and suffered no damages by reason of the defendant’s failure to deliver it to the plaintiff upon demand. The liquor in question was openly brought to the port of New York for trans-shipment to Mexico, steamship space for which had been engaged by plaintiff’s customs broker. At the time this liquor came to the New York port it is a matter of common knowledge that the Volstead Act was not enforced with the rigidity which now prevails, and since that time various rules have been issued by the government making more strict the conditions under which liquor may be possessed in this country. It is very clear from the government documents received in" evidence that this liquor was legally in the possession of the plaintiff and was to be transshipped to Mexico with government permission. At the time it was stolen from the defendant’s warehouse no steps had been taken on the part of the government to seize it. If additional permits were required from the Commissioner of Internal Revenue
In Commonwealth v. Coffee (9 Gray [Mass.], 139) the Supreme Judicial Court of Massachusetts held that even in a case where intoxicating liquor was purchased in violation of law and intended by the purchaser to be sold in violation of the Massachusetts statute, and transported in violation of law, such liquor was, nevertheless, the subject of larceny. At the trial of the defendant for larceny of
It is said in Page on Contracts (§ 541): “ If A acquires property under an illegal contract with B, X cannot seize such property, convert it to his own use, and in an action by A, set up the illegality of the contract whereby A acquired such property.” In other words, it does not lie in the mouth of the defendant to urge that the ownership of the plaintiff in the twenty-seven barrels of whisky lost was illegal, and that the plaintiff had no title therein, and suffered no damages by reason of the loss of the whisky.
I think the verdict was entirely proper, and that the judgment entered thereon should be affirmed, with costs.
Clarke, P. J., Finch, Martin and Burr, JJ., concur.
Judgment affirmed, with costs.