49 Misc. 272 | N.Y. App. Term. | 1906
Lead Opinion
The plaintiff brought an action against Cohen and the Dochtermanns as defendants, the latter of whom are warehousemen, to recover damages for the conversion of goods which were alleged to have been wrongfully taken from the plaintiff by the defendant Cohen, a marshal of the city of New York, under an execution against one Krautman, and deposited in the warehouse of the defendants Dochtermann.
Upon motion of the defendants’ counsel, the complaint was dismissed as to- the defendants Dochtermann, on the grounds that the plaintiff had not made a proper demand and refusal to deliver; and that, by reason of chapter 608 of the Laws of 1902, the defendants were under no liability to the plaintiff.
The evidence shows that, the day after the removal of the goods by Cohen, the plaintiff visited the defendant Charles Dochtermann who admitted having received the goods claimed by the plaintiff, but said that he could not give them to the plaintiff just then, and that they were stored in one of the defendants’ other warehouses. The plaintiff then asked when he could see his goods, as he wanted them. The defendant answered that the goods were there and added that, if the plaintiff would leave his name and address, defendant would communicate with him, and that no one would get them. The plaintiff left his name and address, but received no communication from the defendant. The plaintiff alleges that, a month or six weeks subsequently, he identified some of the goods upon the premises of. an auctioneer on Houston street; and, upon reporting the facts to the defendants, the latter assured him that it was impossible. No further pertinent conversation between the parties is reported.
The evidence, however, discloses the facts of a demand by the plaintiff and an unreasonable delay upon the part of the ■defendants, sufficient to predicate a conversion by the defendants Dochtermann.
The respondents urge, as a second ground of the judgment dismissing the complaint, chapter 608 of the Laws of 1902, as follows:
“ Section 1. Whenever hereafter a demand shall be made -upon a warehouseman for a personal chattel held by him on ¡storage, by a person other than him from whom such chattel was received, or other than the holder of the warehouse receipt outstanding, the warehouseman shall with due diligence give notice of the demand to the person from whom the chattel was received and the person in whose name a warehouse receipt for the chattel is outstanding. Such notice may be given personally or by mail to the last known post office address of the party entitled to notice, if he shall have registered an address with the warehouseman. If the depositor or person in whose name the warehouse receipt "is outstanding shall not, within ten days after service of the notice as aforesaid, authorize the delivery of the chattel to the claimant, he shall'be deemed to have refused to deliver, ■and the claimant may sue the depositor or the person in whose name the warehouse receipt is outstanding, in replevin -or for conversion. The warehouseman may refuse to deliver a personal chattel to the depositor or holder of the warehouse receipt after a demand is made upon hiiq as aforesaid and during twenty days after notice of the demand to the depositor or holder of an outstanding warehouse receipt. The warehouseman' shall not, by reason of such a refusal nor by reason of such retention incur any liability to any person and shall not be sued for and on account of such refusal ■■at law or in equity. And after a suit in replevin shall be brought by the claimant, and the warehouseman is notified
“ § 2. A warehouseman shall not have a lien for storage charges upon stolen goods.”
An earlier statute upon this subject (Laws of 1895, chap. 633) has been held unconstitutional. Follett Wool Co. v. Albany T. W. Co., 61 App. Div. 296.
The earlier statute provided that no warehouseman should be made a defendant in any action concerning the title or possession of goods deposited with him, unless he claimed some interest therein other than a lien for the lawful charges growing out of the custody thereof; and contained no provision that such immunity should be conditional upon furnishing to the claimant the name and address of the depositor. See also Mulligan v. Brooklyn Warehouse Company, 34 Misc. Rep. 55.
The appellant contends that the statute in the present case is free from the vice of the earlier statute, by reason of the provision that, as a condition to immunity from an action for conversion, the warehouseman must “ make known to the claimant of the chattel the name and address of the depositor.”
In invoking the extraordinary protection of the present statute, the defendants Dochtermann should be held to a strict performance of this condition; and the absence of evidence that they notified the defendant Cohen may well be held not to be cured by the fact that the defendants knew that Cohen was a depositor.
The reversal of the judgment of the trial court, however, may be rested upon the broader ground that the statute relied upon by the defendants is void by reason of the defects referred to in the earlier statute in Follett Wool Co. v. Albany T. W. Co., supra. This court has already intimated that the present statute is unconstitutional. Hazlett
Even when a depositor is an ascertained person, whose name and address are made known to the claimant, the substitution of the depositor for the warehouseman in the position of the defendant is a taking of property without due process of law. In Levy v. Dunn, 160 N. Y. 504, a statute requiring the court, upon the application of a sheriff sued for the conversion of chattels; taken under levy, to substitute the sheriff’s indemnitor for defendant, was under consideration. Among the grounds relied upon by the court in holding the statute unconstitutional, was the possibility that the indemnitor, thus arbitrarily substituted in place of the sheriff, might be an irresponsible party. The present statute, by substituting as defendant a depositor who may be irresponsible, and granting immunity to the warehouseman in whose custody the goods may be most unsafe, is defective for the reasons above stated.
Upon these grounds, it is our opinion that the statute violates the constitutional prohibition against the taking of property without due process of law.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Dowling, J., concurs.
Concurrence Opinion
I agree that the plaintiff proved a sufficient demand and refusal to lay a basis for this action. His ownership of the goods and their value are not disputed. In my opinion the present statute (Laws of 1902, chap. 608) is quite as obnoxious to the Constitution as was the former act. Laws of 1895, chap. 663, They both undertake to deprive a party of his property without due process of law. J3ut, even if the Act of 1902 should be deemed to be valid, it would afford no protection to the defendant warehouse-men; for they failed to show that they had ever given to plaintiff the name and address of the depositor. That the plaintiff apparently found this out for himself does not excuse the warehousemen’s omission.
Judgment reversed and new trial ordered, with costs to appellant to abide event.