Gouch v. Republic Storage Co.

125 Misc. 791, 211 N.Y.S. 433, 1925 N.Y. Misc. LEXIS 930

• Court: New York Supreme Court
• Decided: July 10, 1925
• Status: Published

Opinion

Crain, J.:

This action was for the recovery of $12,193 as damages for the non-delivery of twenty-seven barrels of whisky alleged to be the property of the plaintiff and to have been stored in the bonded warehouse maintained by the defendant. It was based- upon the assertion that the defendant had not exercised proper care as a bailee of the goods, and that-.in consequence they were stolen. The defendant contended that it was not responsible because the loss was due to a burglary, and that it had exercised proper care to safeguard the property. At the close of the plaintiff’s case, and again at the close of the whole case, defendant’s counsel moved to dismiss the complaint on the ground that the plaintiff had not proved facts sufficient to constitute a cause of action. The decision of these motions was reserved, and the case was submitted to the jury, and their verdict was taken subject to the opinion of the court. The jury found in favor of the plaintiff for the sum of $7,660.64. Defendant moved for a direction of a verdict in favor of the defendant, and moved to set aside the verdict rendered on the ground that it was excessive, contrary to the evidence and the weight thereof, and otherwise contrary to law.

The action arose as follows: The plaintiff, a hotelkeeper of Nor-walk, Conn., purchased from a concern known as the Finance and Trading Company, in the spring of 1922, thirty barrels of whisky, which at the time were located in Havre, France. He caused the whisky to be shipped to New York by the White Star Liner Olympic. He employed a firm of custom house brokers, and a day before the whisky arrived he contracted to sell it to the Chauhtemoc Trading Company of the city of Mexico. He instructed his brokers to cause it to be reshipped on the Ward Line steamship Esperanza. The whisky was landed at the port of New York, gauged by customs officers, and taken under permits to the bonded warehouse of the defendant, there being an unexpected delay in connection with the making of reshipment to Mexico. Early in the following September the plaintiff called at the defendant’s warehouse to pay storage charges and obtain delivery, and was informed that the warehouse had been broken into and all but three of the thirty barrels stolen. The issue as to whether or not the defendant had taken proper precautions to safeguard the property and prevent theft was submitted on conflicting evidence to the jury. Then’ verdict is a finding of a want of proper care on the defendant’s- part. The defendant, however, contends that the plaintiff had no property in the whisky, that the importation and attempted reshipment were illegal and prohibited acts, and that the plaintiff has not been damaged by the theft. The defendant further contends that the verdict rendered was a compromise verdict violative of the statute, and that it is unsupported by the evidence.

The clauses in the Federal statute (41 U. S. Stat. at Large, 307, chap. 85, tit. 2) declaring that liquor is not property are to be regarded as police regulations inserted for the purpose of protecting government officials in the exercise of their duties, but as between private persons there may be property in liquor despite these provisions until the government has taken proceedings to confiscate it. This view is supported by the reasoning in People v. Otis (235 N. Y. 421, 423).

Two witnesses gave evidence as to value. They testified as experts. The jury did not adopt the figures of either. They appear to have believed that it was worth less than the value placed upon it by the plaintiff and more than that placed upon it by defendant’s witness Traitel. It was competent for the jury to determine the value, and their verdict cannot be set aside as the result of an unlawful compromise.

The verdict must be allowed to stand and defendant’s motions denied.