Strahlheim v. Wallach

12 Daly 313

• Court: New York Court of Common Pleas
• Decided: January 21, 1884
• Status: Published

Opinion

J. F. Daly, J.

I see no objection to granting the injunction asked for, and none to the form of action which plaintiffs, as vendors of goods exercising their right of stoppage in transitu, have seen fit to bring in order to enforce their lien in equity. The bills of lading and invoices which they, sent to defendants Wallaeh came into possession of Lewis, the assignee under the general assignment from the Wallachs to him, and he refuses to deliver them.

The goods are in the custom house, where they were sent under general orders, and plaintiffs cannot obtain them without due entry, which can only be made by the owner or consignee, or his agent, and. upon production of the bills of lading and the invoices (U. S. Rev. Stat. § 2785).

It is necessary that the documents should not only be delivered by the assignee Lewis, but be indorsed or assigned over to the plaintiffs to enable them to make entry, and the equitable powers of the court should be exercised for the purpose of compelling such transfer.

An injunction pendente lite against any sale or transfer by the assignee or assignors of the invoices or bills of lading seems to be proper. Equitable relief will be granted to the vendor in such a case if it be necessary for the protection of the lien and the goods (Schotsmans v. Lancashire and Yorkshire Railway, L. R. 2 Ch. Ap. 332-839 ; see also Gossier v. Schepeler, 5 Daly 476; Rosenthal v. Dessau, 11 Hun 49).

The order should be reversed and an order made continuing the preliminary injunction, with $10 costs of motion to plaintiffs, and $10 costs and also disbursements of appeal to appellants.

Van Hoesen and Beach, JJ., concurred.

Order accordingly.