Page, J.:
In order that goods shipped, for which an order bill of lading has been issued by the carrier, shall be exempt from seizure or levy by judicial process without the surrender of the bill to the carrier or it being impounded by the court, the goods must have been delivered to the carrier “ by the owner or by a person whose act in conveying the title to them to a purchaser for value in good faith would bind the owner.” (Fed. Bill of Lading Act, Aug. 29,1916, in effect Jan. 1, 1917; 39 U. S. Stat. at Large, 542, chap. 415, § 23; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 210, added by Laws of 1911, chap. 248.)* One of the questions, therefore, the answer to which is determinative of this appeal, is, Was Shirk such a person? The material was cut into forms by the plaintiffs in New York city and sent to Shirk, to be manufactured and returned to the plaintiffs. Payment for the work done was not to be made prior to or upon delivery of the manufactured article, but a stipulated price per dozen was to be paid the next week after delivery. This transaction was one of bailment for the benefit of both parties, in which [854] the bailee was to perforin work upon the property of the bailor for a reward, or what was termed in the Roman law, a locatio operis faciendi. The title to the material was at all times in the plaintiffs; the materials added by Shirk in performing his contract became by accession, when joined with the materials furnished by the plaintiffs, the property of the latter, they having furnished the principal part, the part furnished by Shirk being accessorial merely. (Mack v. Snell, 140 N. Y. 193, 195; Sattler v. Hallock, 160 id. 291, 298.) The fact that Shirk was to return these goods did not change the relation of the parties from bailor and bailee to that of principal and agent. The obligation to return them arose under the original contract of bailment. But even if, as Mr. Justice Smith asserts, the relation was changed, the agent would only have the right to ship the goods on a nonnegotiable bill of lading. He would have no right of his agency to appropriate them to his own use, or charge them with a lien, for his own benefit, for which his principal was not hable. Under section 210 of the Personal Property Law, the test is not was the person who delivered the goods authorized to ship them and to receive a bill of lading, but was he a person authorized to convey title to the goods. It must be a person with authority to sell the goods and give a good title to a bona fide purchaser. We must bear in mind that the work on these goods, under the contract, was not to be paid for on or before delivery, but one week after delivery. Shirk, therefore, did not have any possessory right under an artisan’s lien. When Shirk attached the order bill of lading to his draft upon the plaintiffs for a sum of money for which he had no claim against the goods represented by the bill, and thereby subjected the goods to a lien for the amount of the draft, he came perilously near committing the crime of larceny. (Penal Law, § 1290, subd. 2.) At all events, as the court said in the case of which the above is a paraphrase, he wrongfully violated the contract with those who had intrusted the property to his care.- (Eytinge & Co., Inc., v. Atlantic Transport Co., 160 App. Div. 635, 638.) Had Shirk sold the goods, he would have committed larceny. It is a trite maxim of the law that “ a thief can give no title.”
[855] Furthermore, there is no inhibition in the statute against replevin by the lawful owner. The language of the statute is that the goods “ can not thereafter, while in the possession of the carrier, be attached by garnishment or otherwise or be levied upon under an execution.” Attachment and execution are issued against the goods of the owner to hold for or to satisfy a debt of the owner in an action against the owner thereof; while replevin is an assertion by the owner of his right of possession of property wrongfully withheld. (See Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57, 65, 67.) In the instant case the defendant incurs no risk of damages by the delivery of the goods, as the right of the true owner may be set up as a defense by the carrier, where the property has been delivered up to him by the carrier, whether voluntarily or pursuant to process in a suit instituted for that purpose. Especially is this true where, as in the present case, the carrier immediately notified the shipper of such taking. (Bliven v. Hudson River R. R. Co., 36 N. Y. 403; Western Transportation Co. v. Barber, 56 id. 544, 551; Roberts v. Stuyvesant Safe Deposit Co., supra; Eytinge & Co., Inc., v. Atlantic Transport Co., supra; The Idaho, 93 U. S. 575, 578; Wells Fargo & Co. v. Ford, 238 id. 503, 505.)
The appellants rely upon General Order No. 43 of the Director General of Railroads, as interpreted by a judge of the District Court of the United States in the case of United States v. Kambeits (256 Fed. Rep. 247, 250), as prohibiting this replevin. It reads as follows: “ It is therefore ordered, that no moneys or other property under Federal control or derived from the operation of carriers while under Federal control shall be subject to garnishment, attachment, or like process in the hands of such carriers, or any of them, or in the hands of any employee or officer of the United States Railroad Administration.” (Official U. S. Bulletin, vol. 2, No. 405, p. 1.) This was held in the case last above cited to apply to goods of private citizens while in course of transportation. In my opinion, such construction does violence to the intent and meaning of the order, and, furthermore, that if it was intended to be so applied, it would be void, being beyond the powers of the Federal Administrator as conferred by the act of Congress (40 U. S. Stat. at Large, 451, chap. [856]*85625). The recitals contained in and preceding the order show that the purpose was to safeguard the wages of employees from garnishee process while in the possession of the Federal Administrator, as such practice was prejudicial to the operation of the lines and systems of transportation. The act of Congress (supra) at section 10 provides: “ That carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this Act or any other Act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the. carrier is an instrumentality or agency of the Federal Government. * * * But no process, mesne or final, shall be levied against any property under such Federal control.” (40 U. S. Stat. at Large, 456, § 10.)
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Page, J.:
In order that goods shipped, for which an order bill of lading has been issued by the carrier, shall be exempt from seizure or levy by judicial process without the surrender of the bill to the carrier or it being impounded by the court, the goods must have been delivered to the carrier “ by the owner or by a person whose act in conveying the title to them to a purchaser for value in good faith would bind the owner.” (Fed. Bill of Lading Act, Aug. 29,1916, in effect Jan. 1, 1917; 39 U. S. Stat. at Large, 542, chap. 415, § 23; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 210, added by Laws of 1911, chap. 248.)* One of the questions, therefore, the answer to which is determinative of this appeal, is, Was Shirk such a person? The material was cut into forms by the plaintiffs in New York city and sent to Shirk, to be manufactured and returned to the plaintiffs. Payment for the work done was not to be made prior to or upon delivery of the manufactured article, but a stipulated price per dozen was to be paid the next week after delivery. This transaction was one of bailment for the benefit of both parties, in which [854] the bailee was to perforin work upon the property of the bailor for a reward, or what was termed in the Roman law, a locatio operis faciendi. The title to the material was at all times in the plaintiffs; the materials added by Shirk in performing his contract became by accession, when joined with the materials furnished by the plaintiffs, the property of the latter, they having furnished the principal part, the part furnished by Shirk being accessorial merely. (Mack v. Snell, 140 N. Y. 193, 195; Sattler v. Hallock, 160 id. 291, 298.) The fact that Shirk was to return these goods did not change the relation of the parties from bailor and bailee to that of principal and agent. The obligation to return them arose under the original contract of bailment. But even if, as Mr. Justice Smith asserts, the relation was changed, the agent would only have the right to ship the goods on a nonnegotiable bill of lading. He would have no right of his agency to appropriate them to his own use, or charge them with a lien, for his own benefit, for which his principal was not hable. Under section 210 of the Personal Property Law, the test is not was the person who delivered the goods authorized to ship them and to receive a bill of lading, but was he a person authorized to convey title to the goods. It must be a person with authority to sell the goods and give a good title to a bona fide purchaser. We must bear in mind that the work on these goods, under the contract, was not to be paid for on or before delivery, but one week after delivery. Shirk, therefore, did not have any possessory right under an artisan’s lien. When Shirk attached the order bill of lading to his draft upon the plaintiffs for a sum of money for which he had no claim against the goods represented by the bill, and thereby subjected the goods to a lien for the amount of the draft, he came perilously near committing the crime of larceny. (Penal Law, § 1290, subd. 2.) At all events, as the court said in the case of which the above is a paraphrase, he wrongfully violated the contract with those who had intrusted the property to his care.- (Eytinge & Co., Inc., v. Atlantic Transport Co., 160 App. Div. 635, 638.) Had Shirk sold the goods, he would have committed larceny. It is a trite maxim of the law that “ a thief can give no title.”
[855] Furthermore, there is no inhibition in the statute against replevin by the lawful owner. The language of the statute is that the goods “ can not thereafter, while in the possession of the carrier, be attached by garnishment or otherwise or be levied upon under an execution.” Attachment and execution are issued against the goods of the owner to hold for or to satisfy a debt of the owner in an action against the owner thereof; while replevin is an assertion by the owner of his right of possession of property wrongfully withheld. (See Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57, 65, 67.) In the instant case the defendant incurs no risk of damages by the delivery of the goods, as the right of the true owner may be set up as a defense by the carrier, where the property has been delivered up to him by the carrier, whether voluntarily or pursuant to process in a suit instituted for that purpose. Especially is this true where, as in the present case, the carrier immediately notified the shipper of such taking. (Bliven v. Hudson River R. R. Co., 36 N. Y. 403; Western Transportation Co. v. Barber, 56 id. 544, 551; Roberts v. Stuyvesant Safe Deposit Co., supra; Eytinge & Co., Inc., v. Atlantic Transport Co., supra; The Idaho, 93 U. S. 575, 578; Wells Fargo & Co. v. Ford, 238 id. 503, 505.)
The appellants rely upon General Order No. 43 of the Director General of Railroads, as interpreted by a judge of the District Court of the United States in the case of United States v. Kambeits (256 Fed. Rep. 247, 250), as prohibiting this replevin. It reads as follows: “ It is therefore ordered, that no moneys or other property under Federal control or derived from the operation of carriers while under Federal control shall be subject to garnishment, attachment, or like process in the hands of such carriers, or any of them, or in the hands of any employee or officer of the United States Railroad Administration.” (Official U. S. Bulletin, vol. 2, No. 405, p. 1.) This was held in the case last above cited to apply to goods of private citizens while in course of transportation. In my opinion, such construction does violence to the intent and meaning of the order, and, furthermore, that if it was intended to be so applied, it would be void, being beyond the powers of the Federal Administrator as conferred by the act of Congress (40 U. S. Stat. at Large, 451, chap. [856]*85625). The recitals contained in and preceding the order show that the purpose was to safeguard the wages of employees from garnishee process while in the possession of the Federal Administrator, as such practice was prejudicial to the operation of the lines and systems of transportation. The act of Congress (supra) at section 10 provides: “ That carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this Act or any other Act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the. carrier is an instrumentality or agency of the Federal Government. * * * But no process, mesne or final, shall be levied against any property under such Federal control.” (40 U. S. Stat. at Large, 456, § 10.)
To understand the limitations of the words “ Federal control,” reference should be had to the first section of the act, which states: “ That the President, having in time of war taken over the possession, use, control, and operation (called herein Federal control) of certain railroads and systems of transportation (called herein carriers) * * *.” (40 TJ. S. Stat. at Large, 451, § 1.) It is clear that this section of the act relates only to the operation and control of the railroad systems and the property engaged directly as an instrumentality of such operation, on the ground that it was necessary to enable the government to transport troops, munitions and supplies. Only so far as such necessity justified the use of the war power of the government, could the same be sustained under the Federal Constitution. In all other respects the laws of the States were left in full operation. To hold that the lawful owner of goods could not take them by judicial process, because at the time they happened to be under Federal control, not for government use but merely for transportation for hire, would violate the provision of the Federal Constitution, that no person shall be deprived of his property without due process of law. Nor can Congress [857] deprive the citizens of this country of the right to resort to the courts which have been established by the several States to prosecute or defend actions and -suits, according to the established usage and practice, in accordance with the law of the land. (See Ex Parte Milligan, 4 Wall. 2; Ochoa v. Hernandez, 230 U. S. 139, 161; Dantzler Lumber Co. v. Texas & P. Ry. Co., [Sup. Ct. Miss., Mch. 1919] 80 So. Rep. 770.)
It is my opinion that the plaintiffs had the right to resort to replevin proceedings to recover their property, and that there is nothing in the acts of Congress placing railroad systems under Federal control that in any way impairs that right.
The order should be affirmed, with ten dollars costs and disbursements.
Latjghlin and Dowling, JJ., concurred; Smith and Phil-bin, JJ., dissented.