
    Follett Wool Company, Respondent, v. Albany Terminal Warehouse Company, Respondent. Utica Trust and Deposit Company, Appellant.
    
      Wa/rehouseman — right of, to substitute in his place rirai claimants of goods sued for—it is not affected by chapter 633 of the Laws of 1895 — that act is unconstitutional.'
    
    Where a person, claiming to be the owner of goods stored in a warehouse, brings-an action against the warehouse company to -recover possession of such property, the fact that the warehouse company may have a good defense to the action under chapter 633 of the Laws of 1895, providing that “No warehouse company or persons or person lawfully engaged in the business of storing . goods, wares and merchandise for hire shall be made a party defendant in any action concerning the title to or possession of any goods, wares or merchandise held on storage by such warehouse company, persons or person, unless such warehouse company, persons or person so holding the same on storage shall claim some right, title or interest of, in or to the same other than a lien for the lawful charges growing out of the care and custody thereof,” does not deprive it of its right in a proper case, to have rival claimants of the property substituted as defendants in its place and stead under section 830 of the Code of Civil Procedure.
    The protection of the statute may be invoked only by the warehouse company, and is not available to one of the rival claimants as a defense to the warehouse company’s motion for an interpleader.
    The statute takes away, without due process of law and without compensation, a remedy against the warehouse company which, in its nature,, is a property right, and it is, therefore, unconstitutional.
    Appeal by the Utica Trust and Deposit Company from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 28th day of November, 1900, directing that the Utica Trust and Deposit Company, Charles M. Friend, as receiver of the D. J. Hamburger & Sons Company and the D. J. Hamburger & Sons Company be substituted as defendants in the action in the place of the Albany Terminal Warehouse Company.
    
      P. G. J. De Angelas, for -the appellant.
    
      J. Newton Fiero and George W. Stedman, for the plaintiff.
    
      Learned Hand, for Albany Terminal Warehouse Company.
    
      
      Countryman, Du Bois & Bevcms, for Charles 1VI. Friend, receiver.
    
      Scherer, Downs <& Towner, for D. J. Hamburger & Sons Company.
   Kellogg, J.:

The complaint alleges the ownership in plaintiff of a specified lot of wool; that defendant the Albany Terminal Warehouse Company took and wrongfully detains such property, that this defendant refuses, after demand, to deliver to plaintiff the possession thereof, claiming that one D. J, Hamburger & Sons Company deposited such wool with this defendant, and defendant issued warehouse receipts thereon. Judgment is asked for the immediate possession of such wool, etc. A motion was made by defendant the Albany Terminal Warehouse Company, based upon affidavits showing that the defendant had served no answer and had no beneficial interest in the property; that, as warehouseman, it received the wool from D. J. Hamburger & Sons Company ánd issued to that company negotiable warehouse receipts therefor; that the said D. J. Hamburger & Sons Company had deposited such receipts with the Utica Trust and Deposit Company as collateral to some obligation; and both the Utica Trust and Deposit Company and the D. J. Hamburger & Sons Company and Charles M. Friend, its receiver, had made a demand upon defendant for such property, together with other facts showing that such claims were substantial and made in good faith. The motion was made upon notice to all of the said parties, and no opposing affidavits were read. The facts disclosed by the verified complaint, and the affidavits disclose, a proper case for the substitution under section 820 of Jhe Code of Civil Procedure, unless the statute which the Utica Trust and Deposit Company invokes can be construed as, a-preventive obstacle in the way of this defendant’s motion. The statute referred to is chapter 633 of the Laws of 1895, and provides, among other things, that “ No warehouse company or persons or person lawfully engaged in the business of storing goods, wares and merchandise for hire shall be made a party defendant in any action concerning the title to or possession of any goods, wares or merchandise held on storage by such warehouse company, persons or person, unless such warehouse company, persons or person so holding the same on storage shall claim some right, title or interest of, in or to the same other than a lien for the lawful charges growing out of the care and custody thereof.” The other provisions of the chapter do not furnish any adequate remedy to the real owner of property wrongfully taken and so deposited. The mandate of the Legislature not to bring, an action'against a warehouse company doing business for hire is claimed by the appellant to be a full protection to the Albany Terminal Warehouse Company, and that this action' cannot be maintained. The appellant, however, does not claim that the action cannot be maintained in case this defendant does not see fit to invoke the protection of this questionable statute. It does not appear that defendant has invoked this protection, or that it intends to do so. Conceding that the statute is a complete protection, I do not see how that concerns the Utica Trust and Deposit Company. If a complete protection to defendant, some form of motion or trial must be had in court to so determine. . Some expense and peril must be incurred, and some court must adjudicate the question ujjon facts presented. I do not think that section 820 of the Code of ' Civil Procedure debars a defendant from .seeking this remedy of interpleader, because it may have a good defense to the action, ór because it possibly may have the action dismissed on motion b.y reason of this statutory exemption. If the exemption should be adjudged of any value it is an exemption which defendant only can invoke and may be waived by this defendant without injury to the Utica Trust and Deposit Company. This might be taken as a sufficient reason for granting the order, but it is unnecessary to stand on that ground alone.

The act of the Legislature referred to takes away a remedy which in its nature is a property right. The "owner of .property has a right to reclaim it or recover its value from a wrongful holder. The Legislature has no power to confer,a right in property upon another without the owner’s consent, without due process of law and without compensation. This act undertakes to' do that. Bight of- possession is a property right. To confirm in a warehouse company a possession acquired without the owner’s consent, directly or indirectly, is to deprive the owner of a property right without due process of law. This act of the Legislature lias no other purpose than- to change a wrongful possession into a lawful one; it seeks to shield -the commercial agent of a wrongdoer; it erects a barrier between the owner and his property and deprives him 'of his right to immediate possession; and this does not proceed on any ground of public policy, nor is it within the scope of any police regulation. The act is intended to confer upon a class of persons or corporations, doing a certain line of ordinary business, extraordinary rights, and these are the rights in property which are arbitarily taken from others — the true owners of the property. It, in effect, creates a safe depository for stolen goods, and denies to the true owner his right to immediately repossess them, although the custodian claims no title to or interest in the property so wrongfully deposited. It is no answer to say that the true owner may discover, if he can, and pursue the person who made the deposit or the possessor of the warehouse receipt. The act, nevertheless, seeks to confer upon the custodian a possessory right, which in itself is property, and to deprive the true owner of this property right without due process of law. It is needless to say that such an act of the Legislature violates the provisions of the Constitution and cannot be upheld on any principle of public policy or police regulation. The warehouseman, in all cases, has the means of self-protection; he may issue non-negotiable receipts; if that should tend to diminish his business it may result in a personal loss, but it will prevent all pretense of claim to enhance his profits through dealing without inquiry in stolen goods.

The order should be sustained, with ten dollars costs and disbursements. .

All concurred ; Parker, P. J., and Smith, «L, in result.

Order affirmed, with ten dollars costs and disbursements.  