
    Eva L. Goldenson, Resp’t, v. Chester B. Lawrence, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed December 8, 1893.)
    
    1. Appeal—Record.
    Where the record does not show that a motion to strike out a defense and the evidence in support thereof was passed upon, the appellate court is bound by the record and has no right to assume that the motion was granted.
    2. Warehousemen—Conversion.
    Where a party stores goods with a warehouseman as the owner, and another person afterwards demands them and presents the warehouse receipt with the claim that he is the person named as the bailor therein, but there is no transfer of such receipt to him and no explanation of his right to it except the mere possession, the question as to whether he is the owner should be submitted to the jury.
    Appeal from a judgment entered upon a verdict directed by the court from an order denying a motion for a new trial.
    
      David Leventritt, for resp’t; Goodrich, Deady & Goodrich, for app’lt.
   McCarthy, J.

This is an appeal from a judgment entered upon a verdict directed by the court and from an order denying a motion for a new trial.

Action to recover damages for the conversion of sixteen casks of soda ash valued at five hundred dollars ($500). By the amended answer the appellant interposed several defenses which appear thereby. By a stipulation which accompanied the amended answer, it was provided that upon failure to prove certain things, the whole of the seventh paragraph should be stricken out at the end of the testimony, and also that all of the evidence which might have been given to sustain the allegations in the seventh paragraph. But, however, it was further provided that, if at the close of the testimony evidence should appear upon the minutes of the court to sustain a finding that the plaintiff received the transfer of said casks of soda ash with knowledge or notice of the facts connected with the purchase or procurement of the said casks by said Seligman from the firm of Welch, Holme & Clark, then the question shall be submitted to the jury as to whether the plaintiff had such knowledge or notice at such time, but with the charge that if they find that plaintiff had not such knowledge or notice at such time, and also find that said Seligman transferred to the said plaintiff said casks of soda ash for full value theretofore received by him from her, then and in that event they must find a verdict for the plaintiff.

The defendants are warehousemen, and as such received the sixteen casks as stated in their warehouse receipt. The “ Mr. E. L. Goldenson ” named in said receipt was proven to be the plaintiff’s brother Solomon Seligman, although he represented himself to defendant to be Mr. B. L. Goldenson.”

The case contains voluminous testimony for the defendants in support of their allegations in paragraph 7 of the amended answer. At the close of the testimony the plaintiff, by her counsel, moved to have the said paragraph 7 of the amended answer stricken out, and all of the evidence of the defendants in support of the allegations therein also stricken out. The record shows that the court did not grant the motion. The motion was opposed by appellants’ counsel, who also requested the court to submit certain questions to the j ury upon the evidence in support of that paragraph, and also to charge the jury on certain propositions relative to the defenses of the seventh paragraph, and the proofs in support thereof. The court permitted the seventh paragraph of the amended answer, and all the evidence in support of it, to stand. However, the trial judge, “under the stipulation entered into between the parties,” directed a verdict for the plaintiff for the full amount claimed by her, although the said allegations and proofs in support thereof were not stricken out. To "the said direction of a verdict, and also the refusal of the trial judge to submit the questions to the jury, the appellants excepted.

Of course the defendants must be held to the stipulations made.

At the close of the case the plaintiff’s counsel moved as follows:

In the light of the stipulation I move to strike out paragraph seventh of the ansiver interposed by defendant under and in pursuance of the terms set forth in the stipulation in evidence/ and I move to strike out all the testimony that has been offered under said seventh subdivision, that is, the testimony regarding all the representations that ivere made by said Seligman with reference to the purchase of goods by him from Welch, Holme & Clark, and also the statement that he made subsequently with reference to said statements, or to their truthfulness or their falsity, and all the statements that he made thereafter to Mr. Smith, the attorney, at the interview in his office.

Also the statements claimed to have been made by Mr. Sherrill and in the hearing and presence of Mr. Kuschewsky ; and all statements made to any of the witnesses regarding the purchase of the property in question and the manner in which he became possessed of it.” The court did not pass on this motion, and after a series of requests by defendant’s counsel, the court said: “ Under the stipulation entered into between the parties to this action marked plaintiff’s exhibit Ho. 1, I direct a verdict for the plaintiff for five hundred and fifty dollars ($550). In accordance with this direction the jury found a verdict for this sum. We must be bound by the record of the trial and have no right to assume that the motion to strike out was granted, any more than we can say, in a case where an objection has been made and overruled, and no exception appears to be taken, that it was the intent of the party to take an exception. The trial justice had the right if he saw fit to direct a verdict for the plaintiff on the ground that with all the testimony presented it came within the provision of the latter part of the stipulation and that there was no question to go to the jury. We must, therefore, dispose of this case on all the testimony presented, and if there was any evidence to go to the jury on any material fact, then the trial justice erred in directing a verdict. This was not the case of a bailor claiming or demanding his property from the bailee, but the resisting of the claim and demand of a mere stranger to the bailee.

It appears that one Religman, the brother of the plaintiff, stored the property in question in the name of Mr. E. L. Groldenson, and said that this was his name, and stated that he was the owner and had purchased it for himself. Besides, he gave reasons why he wished the property stored with the defendants temporarily, and signed the main receipt stub B. L. Goldenson, stating it was his name. It is in evidence that, during all the trial, Seligman, the brother, was in court, but was not called to contradict or explain this evidence. Therefore, for the purposes of this case, it not being contradicted, we must assume it to be true. The bailor, so far as known to defendant, was Seligman, who, during the trial, was pointed out in court as having represented himself as the owner and that his name was Mr. E. L. Goldenson, and in the presence of others signed the name B. L. Goldenson. He did not deny this, although it was important. Seligman could have owned this property and stored it in any name he pleased, as well as call himself by any name he wished, but having done so, could not, if he was the real owner, release himself from his liability.

The plaintiff thereafter presented herself at defendant’s place of business, and having the storage receipt, demanded this property and said she was the person stated therein as Mr. B. L. Goldenson, and the owner of the property. There was no assignment or transfer of this receipt from Mr. B. L. Goldenson to the plaintiff, and no explanation of her right to it, except the mere possession of the same. Nor was Seligman with her to sustain her claim or to waive whatever rights he might have as original bailor. The plaintiff cannot succeed unless she is the bailor or owner. We think that there was sufficient evidence to go to the jury on the question whether Seligman transferred to the plaintiff the property in question for full value theretofore received by him from her and thus as requested by defendants’ counsel, whether the alleged purchase by Mrs. Goldenson from Seligman was a bona fide purchase or not. If not, she was neither bailor nor owner and not entitled to the property.

Warehousemen are not only liable for losses occasioned by their negligence, but for those which arise from innocent mistakes in the delivery of goods to persons not entitled to receive them. Bank of Oswego v. Doyle, 92 N. Y., page 42. So far as anything appears in this case except the uncorroborated statement of plaintiff, Seligman, known as Mr. E. L. Goldenson, is still the bailor and owner. While a bailee who permits the property of the bailor to be taken by a stranger, may excuse himself by showing that he yielded to the power of legal process, it does not follow that a seizure under such process after the bailee has negligently allowed the property to pass into the hands of trespassers or persons who have no right to it, will be any protection to him in action by the owner. If Seligman, known as B. L. Goldenson, is still the bailor and owner, then Eva L. Goldenson has no cause of action. Roberts v. S. S. D. Co., 135 N. Y., pages 65, 66 and 67 ; 33 St. Rep., 175. This is not the case where a bailee seeks to avail himself of the title of a third person for the purpose of keeping the property himself from the bailor, but rather where the bailee is endeavoring to protect and defend against a stranger and trespassers. Western Transportation Co., v. Barber, 56 N. Y., pages 544, 552 and 553; Ouderkirk v. G. N. Bank, 119 N. Y., pages 266, 267 ; 29 St. Rep., 573; see Blivan & Mead v. Hudson River R. R. Co., 36 N. Y., pages 403 and 406. Here the title of this plaintiff is impeached.

Earl, C. J., in Ball v. Linney, 46 N. Y., page 12, says: “ It is undisputed that, the plaintiff owned the goods which were stored with defendant. Indeed no effort was made on the trial to impeach his title."

Again at page 13. “ It does not appear that he prosecuted any inquiries as to the title of the property and it does not appear that he had any reason to believe that it belonged to Gregory, who was admitted to be the agent of the plaintiff, for when the latter brought it to the warehouse, he simply claimed to be agent and marked his name on the property as agent.” See Kowing v. Manly, 49 N. Y., pages 192, 196. In the case at bar everything was to the contrary.

The question of Iona fide ownership of the plaintiff should under the stipulation as well as under the defense previous to the seventh have been submitted to the jury and for this reason judgment should .be reversed, and a new trial ordered, with costs to abide the event.

Newburger, J., concurs.

Van Wyck, J. (dissenting).

— The defendants’ attorneys stipulated that this case was not to be submitted to the jury unless at the close of the testimony the evidence was sufficient to sustain a finding.

“ That the plaintiff received the transfer of the said casks of soda as referred to in the complaint herein, with knowledge or notice of the facts connected with the purchase or procurement of the said casks by said Seligman from said firm of Welch, Holme & Clark."

There is no evidence whatever in the case from which the jury could find that plaintiff bad such knowledge or notice hence the trial judge was compelled under the stipulation to direct a verdict for plaintiff.  