Wing v. Griffin

1 E.D. Smith 162

• Court: New York Court of Common Pleas
• Decided: April 15, 1851
• Status: Published

Opinion

By the Court. Ingraham, First J.

The note upon which this action, is brought is admitted, and the defence to it consists of a set off for the freight of certain logs from Whitehall to this city, claimed by one Pilling, and assigned by him to the respondent.

The first objection made to the recovery for this set off is, that the charge, for transportation of the logs cannot be said to be for the freight of them, and does not come within the rules which give a lien on the articles so transported. If it should be conceded that it is not strictly to be considered as freight, still I. am of the opinion that the service rendered is one for which the party doing the work had a right to a lien upon the logs until his charge is paid. The service is one of the same nature, and the rules applicable in cases of freight of goods may be applied to this case, without any departure from legal principles. I think, however, there are other points which must dispose of this case without necessarily deciding that point.

Pilling having the charge of the property for transportation, on its arrival here delivered it to Sharp, with special directions not to part with the possession until he received the pay for transportation. His claim for that was against the person he undertook the transportation for; no other could be liable for such charge unless upon the receipt of the property subject to a lien therefor. Of this there can be no doubt, nor was it disputed on the argument. It may well be doubted whether such claim for the transportation could be assigned to a third person without accompanying it with the property upon which the charge was á lien. The rule I understand to be, that a lien cannot be assigned while the assignor retains possession of the property charged therewith. But whether so or not, it is very clear that no third person, not a party to the original contract of transportation, can be charged with such expense, unless upon receipt of the property while subject to the lien. If this be so, it is important to ascertain whether, at the time of the assignment, the property had ever been in the-possession of Wing. The only evidence’ of this fact is in the receipt given by Wing, dated 27th October, 1847. This purports to be a receipt of the logs free from incumbrance. This, from the wording of it, was evidently endorsed upon the contract of Wing and Dayton for the transportation. That it was not an actual delivery is evident, from the declaration of Pilling in the assignment to Griffin, that the logs were at that time in his possession, lying in the basin. This paper is dated 4th November, 1847, a week after the receipt of Wing; and also the declaration in the libel filed in the United States court by Pilling, which was sworn to on the 23d November, 1847, by the respondent, as attorney for Pilling. It is also to be observed, that while Pilling alleges the logs were left with Sharp as his agent, yet, on Sharp’s examination, no attempt is made to show by him any delivery to Wing, or any change in the possession of Sharp.

With this evidence I am at a loss in any way to sustain the finding of any possession of this property by Wing subject to this lien, which could in any way make him responsible for the freight or charge for transportation.

There must have been such a possession before the date of the assignment, to enable Griffin to avail himself of it as a set off against the note of Wing. Even if the property subsequently passed into the possession of Wing, such possession could give Griffin no claim upon him under the assignment of that date, it being unaccompanied with any delivery of the property.

The proceedings in the United States court also "discharged the property from the lien, if it ever existed. Pilling voluntarily selected that tribunal for the enforcement of the lien. It is not material that the court should Lave jurisdiction. It had control of the property so far as to relieve it from the lien on the undertaking being given to comply with the final order of the court; during that period which elapsed after giving the undertaking, and before the decision of the court, no lien remained upon the property. Had the logs during that period been sold to a bona fide purchaser, there would be no doubt of his title to the same being free from such lien. I know of no rule by which the lien could be revived after such decision.

It was urged that the proceeding was dismissed for want of jurisdiction. There is nothing in the decision to that effect. There can be no doubt that if the claim had been for the transportation on tide water alone, the court would have entertained .jurisdiction, and the mere addition to the claim of another for inland transportation, on account of which the libel was dismissed, did not make the whole proceeding “ coram nonjudice ” and void.

The court had a jurisdiction in part, but which they refuse to exercise, because part of the services rendered were not on tide water.

The referee, we think, erred in allowing this set off, and the report must be set aside and the case referred back to the referee. Costs to abide event.

Ordered accordingly.