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N. Y. 456, 14 Am. Rep. 289; Collins v. Ralli, 20 Hun, 246; Smith v. Clews, 114 N. Y. 190, 21 N. E. 160, 4 L. R. A. 392, 11 Am. St. Rep. 627; Follett Wool Co. v. Utica Trust & Dep. Co., 84 App. Div. 151, 82 N. Y. Supp. 597. The argument on behalf of the defendants seems to be that the plaintiffs, by leaving the goods in the possession of the James Freeman Brown Company, after tender of delivery by the latter, brought themselves within the latter portion of the rule above laid down. Whether this is so or not depends upon the custom and practice in the cotton converting business. As was said in Barnard v. Campbell, 55 N. Y. 456, 463, 14 Am. Rep. 289:

"It is not every parting with the possession of chattels or documentary evidence of title that will enable the possessor to make a good title to one who may purchase from him. So far as such a parting with the possession is necessary in the business of life or authorized by the custom of trade, the owner of the goods will not be affected by a sale by the one having the custody and manual possession"-citing various authorities,

The opinion then goes on to state that, in order to create an estoppel by which the owner may be deprived of his property, such owner must clothe the person assuming to dispose of the property with the apparent title to or authority to dispose of it, and the person alleging the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. See, also, Smith v. Clews, supra; Follett Wool Co. v. Utica Trust & Dep. Co., supra; Collins v. Ralli, supra. Having found, as I have, that the plaintiffs were only following the custom of their business in leaving the goods in the possession of the seller until they were ready to receive the goods and to designate points of delivery, I must necessarily conclude, upon the authorities, that they did not thereby estop themselves from asserting their title against subsequent honest purchasers like the defendants.

It is necessary now to proceed to consider whether the circumstance that the sellers were factors affects this case. The so-called factors' act (chapter 179, p. 203, Laws 1830) provides in part as follows:

“Sec. 3. Every factor or other agent, intrusted with the possession of any bill of lading, custom house permit or warehouse keeper's receipt for the delivery of any such merchandise, and every such factor or agent not having the documentary evidence of title who shall be intrusted with the possession of any merchandise for the purpose of sale or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person for the sale or disposition of the whole or any part of such merchandise for any money advanced or negotiable instrument or other obligation in writing given by such other person upon the faith thereof."

In this case, however, the factor or agent, to wit, the James Freeman Brown Company, was not intrusted with the possession of the merchandise, either for the purpose of sale or as security for advances to be made or obtained thereon. In Soltau v. Gerdau, 119 N. Y. 380, 394, 23 N. E. 864, 16 Am. St. Rep. 843, the court points out the difference between the English factors' act and our own statute, and emphasizes the distinction that here, in order to bring a case within the statute, it must appear that the goods were intrusted to an agent for sale, and that it is not sufficient that they were intrusted to a mere commer


and 140 New York State Reporter cial agent, or to one whose business it is to make sales of goods. The opinion, at page 395 of 119 N. Y., page 868 of 23 N. E. (16 Am. St. Rep. 843), contains the following emphatic observation:

"Our statute contemplates the act of the owner in voluntarily and specifically intrusting the goods to some factor or agent for sale, and to no other agent and for no other purpose."

See, also, First Nat. Bank of Toledo v. Shaw, 61 N. Y. 283; Kinsey v. Leggett, 71 N. Y. 387; N. Y. Security & Trust Co. v. Lipman, 157 * N. Y. 551, 52 N. E. 595.

Another point to be considered is whether the defendants, by reason of being warehousemen, are in any better position. Chapter 608, p. 1776, of the Laws of 1902, in its second section, provides as follows:

“A warehouseman shall have a lien upon goods stored with him for bis charges for storage, cartage, labor, freight, insurance and other advances thereon, including weighing and coopering in relation to such goods or other goods belonging to the same owner, and he may detain such goods until his lien is paid.

A warehouseman shall not have a lien for storage charges upon stolen goods."

This statute, it should be observed, is in disfavor with the courts, certain provisions of it having been held unconstitutional in Lissner v. Cohen, 49 Misc. Rep. 272, 97 N. Y. Supp. 227, while in Hazlett v. Hamilton S. & W. Co., 47 Misc. Rep. 660, 94 N. Y. Supp. 580, it was observed that the act was apparently of doubtful constitutionality, citing Follett Wool Company v. Albany Terminal Warehouse Company, 61 App. Div. 296, 70 N. Y. Supp. 174, which latter case was decided under the previous warehousemen's act, namely, chapter 633, p. 433, of the Laws of 1895. I cannot find that the portion of the statute involved in this action has ever been before the courts for determination ; the decisions above cited having reference to making such warehousemen parties, and not to the subject of their lien, as the present action does. It seems to me that the act should be construed as embracing only such things as would naturally be understood as meant by the expression “storage charges,” having in view, the entire portion of the statute above quoted. The words "other advances,” coming after cartage, labor, freight, and insurance, under the familiar principle of construing general words with reference to the specific words preceding them, and limiting their significance accordingly, should be held to mean advances of the general nature of cartage, labor, freight, insurance, or other advances made in handling or protecting the goods, as distinguished from the very different meaning which might sometimes be given to the word “advances," namely, loans upon the security of the goods. The phrase "including weighing and coopering in relation to such goods," immediately following the words "other advances thereon,” confirm the view that it was the intention of the Legislature to give a limited, and not a broad, meaning tɔ the word now under consideration. In other words, the act should be construed as expressing the legislative purpose to secure a warehouseman, strictly as a warehouseman, for everything he does as such in conn ction with the goods, but was not intended to go further and protect him as a banker, and to give him an advantage over other bankers or money lenders, if he should see fit to make loans upon the goods stored with him. My con

clusion is, therefore, that the defendants had no lien upon the goods in suit for the sums they loaned


them. The only question remaining is whether the defendants' lien for the amount due them for storage extends to the amounts due for storing other goods than those in suit, brought to their place and stored with them by the James Freeman Brown Company. When the plaintiffs demanded delivery they offered to pay the storage charges on the bales in question; but the defendants demanded payment of their charges for storing other goods brought by that company. On this point, too, I think the statute should not be construed toɔ broadly, and that the words “other goods belonging to the same owner" should be restricted to actual ownership, as distinguished from apparent ownership, due to possession. Such a construction will secure to the warehouseman under all circumstances, except cases of downrig it theft, his legitimate charge for each lot of goods, and, if he collects for each lot as he allows it to be taken away from the house, he can meet nɔ loss. This construction, at the same time, would guard against the inequitable result sought to be accomplished in this case of requiring the owner of one lot of goods to pay storage charges against other goods belonging to other owners, which charges might have been c-llected from the proper persons, had the warehouseman taken payment for each lot as he surrendered possession of it.

There should be judgment in favor of the plaintiffs for the possession of 34 bales of cotton duck cloth, y of the bales in suit having been returned after this action was brought, and for $456 damages for the detention thereof, besides the costs of this action. In case possession of the said 34 bales is not delivered to the plaintiffs, they should recover from the defendants the sum of $3,567.05, the value thereof at the time of the trial, with interest thereon from the 25th day of May, 1906, the last day of the trial, and the sum of $456 damages for the detention thereof, with the costs of this action. Requests for findings of fact and conclusions of law have been passed upon as indicated upon the margin thereof. Submit for signature an engrossed copy of the complete decision.


(Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) 1. COUNTIES–CONTRACTS-CONSTRUCTION.

Laws 1900, p. 616, c. 277, § 6, providing for the condemnation of a cemetery, declared that within 60 days after confirmation of the commissioners' report the county supervisors should make compensation as awarded by the commissioners, and that in case any person should refuse compensation for lots taken, or should be unknown or incapacitated, etc., his award should be paid into court. Section 7 (page 618) declared that on such payment the title should vest in the people, and that after a specified publication requiring lot owners to remove bodies and monuments, and their failure to do so, such removal and a resetting of monuments should be accomplished by the board of supervisors, the expense so far as possible to be paid by the board from the sums awarded to the owners of lots from which the removal was made, and authorizing the board to acquire sufficient land for that purpose in an existing cemetery

and 140 New York State Reporter in the county. Under this act the board contracted with C. to remove the unremoved bodies and reset unremoved tombstones, agreeing to pay him the amount of awards allowed by the appraisal commission as to the "damages for taking the lands and removing the said bodies" from the cemetery "for the bodies so removed and reinterred, and for the slabs, stones, and monuments so removed and reset.Held, that the act contemplated payment of the land damages before removal of any bodies, leaving under the control of the board of supervisors only such money as remained for the removal and reinterment of the bodies and for the removal and resetting of monuments, and that c. was not entitled under his contract to the awards made for land damages to the owners of lots from which bodies were removed by C., but only to the awards made for



In a prosecution of a county auditor, required by Laws 1895, p. 204, c. 173, to audit and report on all claims ordered paid by the board of supervisors, for larceny for auditing and receiving part of the proceeds of claims made against the county by a contractor for the removal of bodies from a cemetery condemned for public use, evidence held to sustain a finding that defendant did not believe that the contractor was entitled to land damages awarded to owners of lots from which the contractor removed bodies, and that defendant therefore knew at the time

he audited the warrant in question that the contractor had been overpaid. 3. SAME-EVIDENCE-AIDING AND ABETTING–CONSPIRACY.

In a prosecution of a county auditor for larceny, evidence held to sustain a finding that defendant entered into a fraudulent conspiracy with certain others to steal from the county, and that defendant aided and assisted by auditing a warrant for the payment of a fraudulent claim

against the county, and participated in the proceeds. 4. STATUTES-RE-ENACTMENT-AMENDMENT.

Code Civ. Proc. $ 234, authorizing the Governor to appoint extraordinary terms of the Supreme Court, was re-enacted by its amendment in 1895



Const. 1894, art. 6, § 2, providing that the Appellate Division in each department may fix the times and places for holding Trial and Special Terms, as amended in 1905, so as to authorize such justices to fix the times and places “for holding Special Terms,” does not prohibit the justices of the Appellate Division from appointing “Trial and Special Terms," conferred by Code Civ. Proc. $ 232, as amended by Laws 1895, p. 808, c. 946.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 207.) 6. SAME-EXTRAORDINARY TERMS-CONSTITUTIONAL PROVISIONS.

Code Civ. Proc. $ 234, authorizing the Governor to appoint extraordi. nary terms of the Supreme Court, having been amended in 1895 (Laws 1895, p. 808, c. 946, § 234), its validity must be tested by the Constitution as it existed at that time, and was not affected by the constitutional amendment approved at the general election in 1905, which became ef


The Governor was authorized by Code Civ. Proc. $ 234, to appoint an extraordinary Trial Term of the Supreme Court, notwithstanding Const. art. 6, § 2, providing that the Appellate Division justices of each de partment shall have power to tix the times and places for holding Trial and Special Terms and assign the justices to hold the same and make rules therefor.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 227.)



After the jury had been impaneled and sworn, and before any evidence had been given in a prosecution for larceny in which the venue had been changed, it was discovered that the order removing the cause had not been entered in the clerk's office of the county in wbich the trial was had, under Code Cr. Proc. $ 353, providing that such an order is ineffective unless a certified copy be filed as required by section 351, before a jury is sworn to try the indictment. Defendant, though not receding from his position that the court was without jurisdiction, stated that he was willing to waive the question; but the court discharged the jury. Held, that defendant could not thereafter complain of the discharge of the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law,


Where the court discharged a jury drawn and sworn, because a certi. fied copy of the order changing the venue had not been filed in the office of the county where the trial was had, the court was authorized by Code Civ. Proc. 88 1058, 1059, to draw additional jurors to constitute a new jury to try accused, which jury did not constitute a new panel, required

to be drawn in the manner prescribed by sections 1042, 1043. 10. CRIMINAL LAW-FORMER JEOPARDY_DISCHARGE OF JURY.

Where, after a jury had been drawn and sworn, it was discharged, before any evidence had been introduced, because a certified copy of an order changing the venue had not been filed in the county where the trial was had, such proceedings did not constitute jeopardy, precluding a subsequent trial, under Code Cr. Proc. § 430, providing that where a jury is discharged by accident or other cause, except where the defendant is discharged from the indictment during the progress of the trial or after the case is submitted, the cause may be again tried at the same or another term.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, $


A county treasurer is protected in paying out money belonging to the county by a proper warrant, though its purpose is to defraud the county, unless the treasurer is a party to the fraud or has knowledge thereof.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Counties, $ 254.] 12. SAME-COUNTY FUNDS-TITLE-FRAUDULENT WARRANT-PAYMENT.

Payment of county funds by the county treasurer on a fraudulent warrant was not effective to transfer title to the persons who thus obtained

the money, nor to give them any right to possession thereof. 13. LARCENY-TRICK OR DEVICE-FALSE PRETENSES.

Where defendant, a county auditor, and his co-conspirators, obtained money from the county to which they were not entitled by a fraudulent warrant drawn by the auditor, such warrant, though valid on its face, was a mere trick or fraudulent device for obtaining the money, and did not change the offense from larceny to false pretenses, under the rule that larceny at common law is established by proof that defendant obtained possession of the property animo furandi by some trick, fraudulent device, or artifice, with the intention of appropriating it to his own use.

Robson, J., dissenting.
Appeal from Trial Term, Wyoming County.

John W. Neff was convicted of grand larceny in the first degree, and he appeals. Affirmed.

The defendant, John W. Neff, was indicted jointly with Rowland J. Conover for the crime of grand larceny in the first degree, alleged to have been committed on the 1st day of October, 1901, charging them with stealing $7,

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