
    The Niagara Fire Insurance Company of the City of New York, Appellant, v. Campbell Stores, Respondent.
    
      Dismissal of a complaint distinguished from the direction of a verdict —'liability of ■a warehouseman, for hides damaged by the burning of the warehouse, to an incur-, anee company which has paid as f or a total loss thereof—effect of their having , been condemned as a nuisance by the board of health and removed under a contract made by it. ■
    The dismissal of a complaint on a jury trial of an action at law is equivalent to a nonsuit, which in effect is a determination that the plaintiff’s evidence is not sufficient to sustain his cause of action; but where, in such a case, both the . plaintiff’s and the defendant’s evidence is taken, if, ;upon all, the evidence, the plaintiff has established no cause' of action, the proper disposition of the casé is to direct a.verdict for the defendant.
    In an action brought, by a fire insurance company to recover the value of certain hides, saved from the ruins of the defendant’s warehouse, after it had been destroyed by fire, it appeared that the, hides were owned by the firm of Weil <& Brothers; that'the plaintiff had issued to such firm a policy of fire insurance thereon; that after the fire the plaintiff paid to Weil & Brothers the value of the hides and took from them an assignment of their interest in such hides; that the plaintiff then, through one Lewis, made an agreement with the defendant' by which the latter agreed to remove the hides from the ruins and hold them for the plaintiff’s account, the plaintiff out of the proceeds, of a sale thereof to pay the expense of removal; that, pursuant to this contract, the hides were removed from the ruins and placed outside, the burned warehouse;
    ■ that the fire occurred in the summer time and that, the stench from the ruins' was very offensive; that shortly after the fire the health commissionér notified the plaintiff’s representative and the defendant to remove the. hides, as their presence endangered the public health; that subsequently, neither the plaintiff’s representative nor the defendant having obeyed such notification, and the custom house authorities having refused to allow; any of the hides to be sold or removed until they had all been recovered from the ruins and appraised, the board of health adopted a resolution “that said green salt*hides * * * are hereby condemned by the Board as a menace to life and health, and that' said owners be ordered to have said hides * •* * removed at once;” that a day or two later the board of health let the contract for the removal of the hides to one Harrington- and directed the. defendant to deliver the hides to the latter; that Harrington did remove the hides, and that neither the defendant nor the board of health had anything further to do wjth them. •
    Section 27 of the General Statutes of the .State of Hew Jersey .(p. 1640), in which State the defendant’s warehouse was located, provides:. “That a notice of any inspector of any local board of health to abate any nuisance, or by the executive officer or other authorized member of said board, shall be taken as a notice from the board, and if the owner or person notified shall fail to abate the" nuisauce complained of, the said board may cause the same to be abated in a summary way, giving written directions to the inspector in relation thereto, and he shall proceed according to the directions so given.”
    It did not appear that the defendant did not act in good faith, or that it participated in or consented to the removal of the hides.
    
      Held, that the court properly directed a verdict in favor of the defendant;
    That, as the hides were taken out of the possession of the defendant by paramount authority, over which the defendant had no control, and which the defendant could not have resisted, it was relieved from responsibility to the plaintiff for such hides;
    That the question whether the action of the health authorities was justified or not was immaterial;
    That when the hides were removed from the ruins and placed outside the warehouse they were as much in the possession of the plaintiff as of the defendant.
    "Van Brunt, P. J., and Laughlin, J., dissented.
    Appeal by the plaintiff, The Niagara Fire Insurance Company •of the City of New .York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the •county of New York on the 28th day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Edgar J. Nathan, for the appellant.
    
      Henry W. Jessup, for the respondent.
   Ingraham, J.:

Upon the trial, at the end of the plaintiff’s case, the defendant moved to dismiss the complaint. This motion was denied. The •defendant then entered upon its case and introduced its evidence, •and when the defendant rested, there being no testimony in rebuttal, the defendant again moved to dismiss the complaint; which motion was granted.

We have several times called attention to the impropriety of •such a motion after the evidence of both parties has been taken. A dismissal of a complaint in an action at law, under our practice, is equivalent to a nonsuit, which in effect is a determination that the plaintiff’s evidence is not sufficient to sustain his cause of action. Rut after the defendant ,has been heard and his evidence taken, if upon all the evidence the plaintifE has established no cause of action, the prbpor disposition of the case is a direction of a verdict for the defendant. In an action at law. a dismissal of the complaint does not determine the merits of the action. Section 1209 of the Code of Civil Procedure provides that “a final judgment dismissing the complaint, either before or. after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares or it appears by the judgment-roll that it is rendered upon the merits.” This applies to actions in equity where the formal judgment in favor of the defendant, no affirmative relief being granted, is a dismissal of the complaint, and this provision was inserted so that such a dismissal in an equity action should not bar a subsequent action unless it appeared that this dismissal was the result of a determination of the merits of the controversy, as the verdict of a jury would be in an action at law when the case had been fully tried. No objection is taken, however, to the form of the direction by the court and we will assume in disposing of this case that the court directed a verdict for the defendant upon all the evidence.

The action is brought by a fire insurance company to récover the value of certain hides'stored in the defendant’s warehouse that had been destroyed by fire. The defendant, a foreign corporation organized under the laws of the State of New Jersey, maintained a warehouse for the storage of merchandise at Hoboken in that State. Prior to the 30th of June, 1900, a firm known as Alphonse Weil &■ Brothers were the owners "of a quantity of hides which were stored in the defendant’s warehouse of the value of upwards of $10,000, and upon .these hides various insurance companies had issued policies bf insurance. The complaint alleges that on the 30th of June, 1900,- while these policies of insurance' were in full force, a fire occurred which destroyed a part of the warehouse of the defendant and damaged or destroyed a large quantity of hides and other merchandise therein; that the firm of Weil & Brothers filed with the insurance companies proof of its loss by reason of this fire, claiming from the insurance companies the total value of tlie hides so destroyed, and the said insurance company paid to- said Weil & Brothers the value of the hides, the amount of insurance being in-excess of that value, and the said insurance companies demanded and received from Weil & Brothers an assignment of their right, title, claim- and interest in and to the hides, whether damaged or not, then remaining in the defendant’s warehouse; that on or about the 9th of July, 1900, the insurance companies demanded of the defendant the hides which were then stored in the ruins of the warehouse, and that it was agreed between the defendant and the insurance companies that the defendant would proceed to clear up the ruins of the said warehouse and take out all hides contained therein and hold the same, for the account of the companies, the companies agreeing to sell said hides at auction and out of the proceeds thereof when sold pay to the defendant the expense of removing the hides from the ruins; that in pursuance of this agreement the defendant did proceed to-clear up the ruins and take out certain of the hides which had been damaged, but which in their damaged condition were of the value-, of upwards of $12,000;'that in violation of its agreement with-said insurance companies and its duty as warehouseman, the defendant delivered the said hides to other parties, to the damage of the said companies in the sum of $12,000. And the plaintiff, having received an assignment from the other insurance companies upon their cause of action against the defendant, asked for judgment for-the sum of $12,000. The cause of action is thus based upon a delivery of the hides to other parties without the knowledge or consent of the insurance companies.

The an'swer admits and alleges that after the fire a Mr. Lewis, representing certain insurance companies, called upon the defendant and requested it to take out the hides which might be recovered from the ruins of the warehouse, stating that he desired to sell these hides for the account of the insurance companies, and it was thereupon agreed that the defendant should proceed to uncover said hides-for its account, and that, when uncovered, they should be. sold, and defendant reimbursed from the proceeds for its actual expense in so-doing, and that the balance, if any remaining, should be turned, over to said insurance companies; that the said hides had been-imported from foreign countries to the port of New York and had been stored in bond, subject to the payment to the United States of the customs duties imposed thereon, and that the custom house authorities refused, though requested so to do, to release said hides, or any of them, until the said hides and all other contents of the warehouse should have been recovered, and declined to appraise the goods until they should have all been uncovered and the .duty thereon ascertainable; -that while the defendant was proceeding to uncover these goods undér the agreement above set forth, the said hides, which were. badly injured by the fire, “gave out a stench and smell that caused great public complaint, with the result that on or about the 24th day of July, 1900, the board of health of Hoboken, under and by virtue of powers vested in it by law, duly made an order condemning said hides and requiring their prompt removal as constituting a public nuisance, of which action this defendant was notified; ” that subsequently, and before the goods had been taken into possession by the insurance company or sold, an order w;as issued by the board of health of Hoboken to one Harrington, or an agreement made with him by said board, whereupon said Harrington demanded and proceeded at once to remove said hides outside of the limits of the city of Hoboken; that the defendant never received anything for the said hides, and was not reimbursed for its expense in uncovering the same ; that the said hides were in fact delivered to Harrington pursuant to the requirements of the board of health, and by him disposed of, but the manner or times of such disposition was unknown to defendant; that the action of the board of health and said Harrington, acting under its authority, rendered the performance of the agreement which the defendant had made impossible, and that this action of the board of health Was communicated to Lewis, who was fully advised in relation thereto.

Upon the- trial it was proved that the fire commenced on the 30th of June, 1900, and continued until Monday, July second; that the fire destroyed the warehouse in which the hides were stored ; that subsequently the insurance companies paid the loss to Weil & Brothers and received an order on the defendant for the hides claimed by Weil & Brothers; that this order was turned over to a Mr. Lewis, who was requested to take charge of the matter on behalf of the insurance companies, and a communication was thereupon sent to the defendant stating that Messrs. Woodrow & Lewis were authorized to take charge'of all goods remaining in the warehouse and damaged by the fire on June thirtieth, and to take such further action as might be necessary for the removal and disposition of the same. Lewis testified that he was one of the firm of Woodrow & Lewis and that he was employed by the insurance companies to care for the salvage in these warehouses ; that he had an interview with a Mr. Campbell, who was president, of the defendant corporation, and delivered to Campbell his authority from the insurance companies and stated to Campbell that he would have' to make some efforts to know whether there was anything in the’ burned storehouse or not; that Campbell said there would be considerable expense to clear up the ruins and that he did not feel disposed to spend his money on it. Lewis then said : I will tell you what I will do; I will spend $250 of my money to make a demonstration of it.” This proposition was declined. Lewis then proposed that he tvould join with Campbell and clear up the ruins to the extent of paying Campbell out of the salvage the amount of Campbell’s labor on anything that they recovered there in the way of hides. Campbell said that he would do that, Lewis to agree to hold the proceeds of sale of any hides in order to compensate Campbell for money that he spent for labor in cleaning up the ruins of the storehouse, and to that Lewis agreed. Campbell subsequently put a large force of men on the, ruins, and about July ninth some of the hides came out and as they were uncovered they were piled up on one side on the northeast corner of the storehouse. This work proceeded from day to day, and in the latter part of the week of July ninth sufficient of the hides were out to justify a sale. It was then discovered that these hides were in bond and that they could not be sold or delivered until the custom house authorities had consented. TTpon application to the custom house the authorities refused to allow any of the hides to be sold or removed until they had all been recovered from the ruins in order that they could be appraised, and the government officers subsequently refused to modify this order. The work of taking out the hides was then proceeded with. Subsequently Lewis discovered that a pile of hides on the northeast corner of the wall had disappeared, and he was informed that tlifese hides had been put upon two railroad cars which were upon a side track some little distance off ; that they, had been put there'to keep them out of the sun, as they had commenced to smell and they would not in that way be so offensive; that upon the following Monday Lewis discovered that these cars had been taken away, and when he asked Mr. Campbell about them Campbell said he did not -Tmow what had become of them; that he had been informed that •they had been sent up the road to some siding or switch, and '-upon the request of Lewis to have the hides brought back Camp-hell said they had been ordered away; that other cars were then brought in front of the warehouse and the hides were being sorted out and placed upon the cars; that on July twenty-fourth Lewis asked Campbell to have these bides brought back so that they could be sold, and Campbell zsaid that he would order them back from the siding or switch wherever it was; that on Wednesday, the twentyJifth, Campbell came to Lewis’ office and said he thought the cars liad been returned, when Lewis said, “ We will have the sale of itliose hides to-morrow,” to which Campbell replied, “ All right, .‘the sooner the better,” whereupon Lewis advertised the sale of the hides for Thursday'morning, July twenty-sixth. On July twenty-sixth Lewis, with the auctioneer, tyent to the premises to conduct the sale, was met by Mr., Campbell, who introduced him to a Mr. Hyde as Campbell’s attorney who would accompany Lewis at the sale. Hyde and Lewis then went to the premises, but found that no hides were there. The defendant’s superintendent was asked where they .were, and said he did not know. Subsequently Hyde told Lewis that the hides had been removed by a man named Harrington, under some authority given by the board of health of Hoboken. Hyde and Lewis then went to the board of health and saw the health commissioner, Dr. Heifer. Dr. Heifer stated that he had l • ordered the removal of the hides, and Lewis then returned to New York, as the hides had disappeared. Upon cross-examination,' Lewis testified that he received word from Campbell that the board of health liad condémned these hides the latter part of the first week after the fire; that on Tuesday, July twenty-fourth, he received a . letter from Campbell which was introduced in evidence. By. that letter Lewis was notified that the board of health of the city of Hobo-hen had condemned the hides stored by' Weil & Brothers and ■ordered their immediate removal, and Lewis was notified that he , -must arrange to remove them immediately; that in default thereof the defendant would be compelled to dispose of them if possible, ’ and if not, to destroy them; that the defendant understood that the arrangement made by Lewis with the defendant was still holding viz., that out of the proceeds of .the sale to bq effected by Lewis the •defendant’s expenses in rescuing the goods were first to be paid. Lewis further testified that he had an interview with the health commissioner prior to July twenty-sixth, at which the commissioner gave Lewis notice that he would have two days more in which to remove the hides, failing in which they would be seized, and that on July twenty-sixth Dr. Heifer told him that he had ordered the hides away.

Dr. Heifer, the health officer, was called by the defendant and testified that he was acting as president for the board of health in the months of June, July and August, 1900 ; that after the destruction of the Campbell Stores it was very hot, one of the hottest Julys they had had in many years; that about 170 people had been killed by the fire, and the health board had all they could do to save the city from contagious diseases in consequence of the fire and heat; that the Campbell Stores were burning for a long time and that very offensive stenches emanated from the warehouse; that about the eighth or ninth of July he told Campbell that something must be done at once to save the lives and health of the inhabitants because the stench from the warehouse was awful; that Mr. Campbell then ■immediately engaged a large gang of men to have the debris removed ; that they struck a lot of beans, which were very offensive and which were removed; that they afterwards came across some salted green hides; that subsequently a Mr. Lewis came to see the witness, and Lewis asked the commissioner to give him permission to have these hides auctioned off when they were removed from the debris, to which the health commissioner said that he would do anything that he could to get the hides out of the city of Hoboken ; that two or three days elapsed and nothing was done towards removing the hides and the health officer then asked Campbell who were the owners of the hides, and he told him that they had been stored by Weil& Brothers of New Tori. The health commissioner at once notified them by letter that the hides must be removed.

A notice addressed to the defendant, dated July 25, 1900, was then-introduced in evidence. This notice is as follows : In accordance with the orders of the Board of Health, already communicated to you, the hides, beans and other matters contained in your warehouse have .been condemned as a menace to life and health in this city. In pursuance of this order I desire to notify you that Mr. A. W. Harrington has been directed by me to remove the said hides ■at once from the city, and I would thank you to afford him every facility for the execution of that order at once.”

Lewis had been notified the day previous to the date of this letter that these "hides had been condemned and the board of health had ordered their immediate removal. A resolution of the board of health adopted on July 24, 1900, was introduced, which recited ■ that whereas the stench, arising from the hides and beans was unbearable and dangerous to life and health, it was resolved “ that said green salt hides and beans are hereby condemned by the Board, as a menace to life and health, and that said owners be ordered to-have said hides and beans removed at once.” The health commissioner also testified that about the nineteenth or twentieth of July he had an interview with Lewis; that he told Lewis that he did not want to see the lives and. health of the citizens menaced; that if Lewis would remove the hides as quick as they came out of the-debris he would have no objection to his taking them away, but. that he could not give permission to let the hides lie there in the scorching sun and be auctioned off there, because it would' take toe long, and that he would not have the stench that arose from the hides, there any longer to the menace to the health of any one" in the city of Hoboken ; that after he had communicated, to Campbell the fact, that the hides had been condemned as a menace to life and health* the witness engaged a contractor to remove the hides, and made an agreement with Harrington as the contractor, and notice of this, contract was given to the defendant by a letter signed by the corporation attorney, dated July 26, 1900, which’stated that “The bearer, Mr. A. W. Harrington, is directed by order of the Board of Health to remove the hides now in your custody as Warehousemen-, at once out of the City, in accordance with orders heretofore'served upon you. Please deliver the hides to him and he will give you the necessary receipt for the Board of Health ; ” that he made an agreement With Harrington to remove tire hides, and.delivered this letter-addressed to the defendant as his authority; that he went down when Harrington was at work to see that his order was complied with, and'lie saw the hides taken out of the warehouse and removed* and that after that he did not do anything further about it; that after his first conversation with Lewis, at which Lewis was ordered to remove the hides, four or five days were given him to accomplish it; that Lewis promised to do it, but did not, and the witness then took the matter in his own hands and directed their removal by Harrington, as before stated; that after he gave the final order the hides were immediately taken away by Harrington under his order from the president of the hoard of health, and, that he had no communication from • Lewis or any one else in relation to them; that-the witness, as president of the board of health, took charge of the removal of the hides; that he went down to the Campbell Stores,, saw the order to remove the hides executed, and had nothing more to do with the transaction.

The statute of New Jersey in relation to the powers of boards of health was then introduced in evidence. Section 27 of chapter 68 of the Laws of New Jersey of 1887 (Gen. Stat. N. J. 1640, § 27) provides: That a notice of any inspector of any local board of health to abate any nuisance, or by the executive officer or other authorized member of said board, shall be taken as a notice from the board, and if the owner or person notified shall fail to abate the nuisance complained of, the said board inay cause the same to be abated in a summary way, giving written directions to the inspector in relation thereto, and he shall proceed according to the directions so given.”

Mr. Campbell testified that he was connected with the defendant that the health officer came to his office after July twelfth, when they had begun to work at the ruins, and instructed Campbell to remove the contents of these burnt storehouses as soon as possible, as they were becoming offensive and dangerous; that after the beans were,removed‘ and the hides were exposed, the health officer again came to Campbell and told him that he must give him a, notice to get these hides off; that he asked him who Were the owners of the hides, to which Campbell replied, “ Alphonse Weil owns the hides,” but that Weil had settled-with the insurance company ; that the next thing he heard he got an order from the board of health condemning the hides and directing their removal; that he did not personally see Harrington who removed the hides at all; that after he received this order from the board of health he saw Lewis, stated that he had received the order from the board of health to deliver the hides to Weil, but that Lewis said that the hides belonged to him and that he had no right to deliver them to Weil, and the witness did not deliver them to Weil.’

The superintendent of the defendant testified that the notice of condemnation signed by the health officer and the certified* copy • of the resolution of the 'board of health were served personally upon • him; that Harrington, with whom the president of the board of health made a contract to remove the hides, took them and delivered to the defendant a receipt, which was introduced in evidence; that these hides when taken out were wet by the water that was' used to extinguish the fire; that many of them were rotten and stuck together and were very offensive; that the president of the board of health, on or about the twentieth of July, notified the witness ■ that these hides had'to be taken away; that in pursuance of that order he put them on the cars and a locomotive came and pulled them away. , • ■

This testimony was not disputed, and the situation, therefore, was that these hides, removed from the. ruins of this storehouse, were wet and rotten and extremely ofEefisiv'e. After tire fire,- which destroyed a considerable portion of the docks and water front in the city -of Hoboken, the health authorities determined that- th,e public health of the city required that these hides should be removed. Lewis, representing the insurance companies, was repeatedly notified of this determination of the health authorities. The health department, acting under legislative authority, undertook to and did remove the hides, without the consent of the defendant. It is not disputed but that the defendant gave Lewis notice of the action of the health authorities that was communicated to it, and certainly the’ defendant was not responsible for the action of the health officials or their agent in removing these hides. They were taken out of the possession of the defendant by paramount authority, over which the defendant had no control and which the defendant could not have resisted, and it seems to me that this relieved the • defendant of responsibility to the plaintiff, or the other insurance , companies, for a failure to produce or deliver the .hides. It is entirely immaterial in relation to a claim against the defendant based upon a delivery to other parties, whether the ■ action of the health authorities was justified or not. They had the power to remove the hides if their presence was a menace to the life of the community. They exercised that power and took them out of the possession of the defendant and removed them. If the plaintiff wished to recover possession of these hides, it was the health authorities or their agents who removed them that it should have. proceeded against, and not the defendant.

There was no question of fact for the jury. Under, the contract as alleged in the complaint and testified to by the plaintiff’s witnesses, all that the defendant agreed to do was to take the hides out of the building. Lewis then agreed to sell the hides and to repay to the defendant the expense incurred. After the hides were removed and placed on one side out of the building they were as much in the possession of Lewis as of the defendant, and certainly the defendant was not responsible for their removal by the health officers in order to preserve the public health. There is not a particle of evidence that the defendant did not act in good faith, or that it participated in or consented to the removal of the hides. It acquiesced in the exercise of power of the health officials, which it does not appear it could successfully have resisted. There are no exceptions to rulings on questions of evidence relied on by thp plaintiff.

I think, therefore, that on the whole testimony the defendant was entitled to the direction of a verdict, and that the judgment appealed from should be affirmed, with costs.

McLaughlin, J., concurred; Patterson, J., concurred in result;

Van Brunt, P. J., and Laughlin, J., dissented.

Laughlin, J.

(dissenting) :

By the settlement with the owners of the hides and the delivery of the warehouse receipts the title to the hides passed to the insurance companies to the knowledge of the defendant, while the hides were still in the possession of the defendant as warehouseman, and before they had been uncovered or removed. As warehouseman it then became the duty of the defendant to deliver the hides to the insurance companies, and the same duty continued under the contract made by the defendant with the representative of the insurance companies for the excavation of the hides from the ruins. It is alleged in the complaint that the defendant, in violation of its duty in this regard, failed to deliver the hides to the plaintiff, and, without the plaintiff’s knowledge or consent, delivered them to' other parties, and the action is brought to recover the damages thereby sustained. The measure of damages is clearly the value of the hides at the time they were excavated and'delivered to other parties. It is not material to the plaintiff’s right of recovery whether the delivery to other parties was innocently through a mistake of fact or law, or whether it was tortious. I do not question the doctrine that if the hides were taken from the possession of the defendant by legal authority it would not be liable; but in these circumstances it was incumbent on the defendant to show that the health authorities, in the exeipise of their legal rights, took possession of and removed the hides. (Roberts v. S. S. D. Co., 123 N. Y. 57.) I am of opinion that the evidence required the submission of the case to the jury, and the exception to the dismissal of the complaint was well taken. There was evidence tending to show or fairly justifying the inference of collusion between the defendant and Weil & Brothers, the former owners of the hides, and some of the. health authorities. The wrongful interference of Weil & Brothers and their attempt to get possession of this property, after their loss had been adjusted and the title had passed to the insurance companies, to the knowledge of the defendant, clearly appears. After the defendant had contracted with the insurance companies to excavate the hides on a quantum meruit it received a proposition from Weil & Brothers to excavate the hides for them, for the consideration of $1,000, which the defendant took under serious consideration, and apparently only refrained from accepting under legal advice. It is to be borne in mind that no action was taken by the board of health until the twenty-fourth day of July. The original understanding between the defendant and the representative of the insurance companies was that as the hides were excavated they would be sold from' time to time and sufficient retained to compensate the defendant. The hides being bonded and the-duty not having been paid thereon, this plan could not be carried out on account of the refusal of the custom house authorities to consent thereto until all the hides should be excavated. As the hides were removed they were piled and stored on the ■ premises. The representative of the insurance companies apparently accepted the action of the customs officials as final, but it seems that Weil & Brothers made efforts to have the government officials release the hides; The hides were released, and the fair inference is that it was at the instance of Weil & Brothers. Without consulting the representative of the insurance companies, who appeared on the scene daily, the defendant on or about the twenty-first day of July, three day's prior to any action by the board of health, loaded two cars' with these hides, and the evidence justifies the inference that it either billed or consented to the billing of one of the cars to Salamanca and one to Gowanda in the name of Weil & Brothers, and the cars Avere removed from the immediate vicinity. Whether the cars were actually shipped at that time does.not definitely appear, but there is no evidence that they were seen subsequently, although in answer to inquiries on the part of the representative of the insurance companies it was claimed on the part of the defendant that they had been sent to a siding or switch near by, and that they had been subsequently returned to the vicinity of the warehouse on his request for the purpose of having the sale. It appears that this shipping bill or receipt was subsequently canceled and a neAV one substituted, showing that the cars Avere shipped by Harrington, Avhóm the president of the board of health had directed to remove the hides, but the date Avas not changed. In these circumstances the inference Avould fairly be justified that these two carloads were shipped prior to the action of the board of health. Nothing occurred prior to the time that these cars were originally billed to warrant the action of the defendant in billing or shipping them or permitting this to be done. The only interference by the health authorities down to that time was oral directions by the president of the board of health, without any action on tlie part of the board, to the defendant’s president and some of its employees, which Averé communicated to the representative of the insurance companies, that the hides Avere a menace to public health and must be removed, except that after the president of the board of health kneAv that the insurance companies were the parties in interest, it appears that on the nineteenth of July he wrote to Weil & Brothers, directing the removal of the hides and saying that the board of health' had declared them to be a nuisance, and it also appears that Weil & Brothers had in their possession what purported to be a certificate o,f the clerk of the board of health, addressed to the collector of the port of New York, certifying that the hides had been declared by the board to be a nuisance. There had beven no determination by the board that the hides constituted a nuisance, and there was no authority on the part of the board of health or any one connected with it to remove them at this time. The plaintiff, therefore, was entitled to go to the jury as to the defendant’s liability as to these two cars, if not to a direction of a verdict thereon, provided it gave evidence of damages, which I think it did. The evidence shows the number of hides, their condition, the market value of sound hides, that about one-half of these hides were sound, and that the other half were damaged about fifty per cent. This evidence would manifestly justify a recovery of substantial damages.

Moreover, I think questions of fact were presented requiring the submission to the • jury of the plaintiff’s right to recover the other eight carloads of hides. The statute (Gen. Stat. N. J. 1634 et seq) regulating the powers and duties of the board of health of Hoboken, so far as drawn to our attention, does not provide for a notice of hearing to the owner before property may be condemned "as a nuisance injurious to public health. It is unnecessary to determine, however, whether any action that could be taken by the board of health in these circumstances would justify the confiscation of private prop-. erty as a nuisance; for, although the board of health acting' ex parte adjudged these hides to be a menace to the public health and directed that thfe owners be ordered to remove them,-it did not direct the defendant tó .remove them and did not authorize .airy one to remove ,tliem in behalf of the board of health. It is claimed that the removal was made, not by the defendant, but by Harrington acting under a" contract with the president of the board of health. The board of health did not authorize this contract, and if the eight cars were removed thereunder the action was without legal authority and should not have been acquiesced in by the defendant. (Roberts v. S. S. D. Co., supra) I am of opinion that it would not have been acquiesced in by the defendant had not the defendant, Weil & Brothers, the president of the board of health and the contractor been acting in collusion.

I, therefore, dissent from the affirmance.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs.  