#### May Gwynn Cottew, Appellant, *v.*Napoleon Dube, Respondent.

(City Court of New York, General Term,

October, 1900.)

Warehouseman — Unconstitutionality of L. 1895, ch. 633, § 3, relative to suits against.

The statute (L. 1895, ch. 633, § 2) declaring that no warehouse company, storing goods for hire, shall be made a party defendant in any action concerning the title or possession of the goods stored unless such company or person shall claim some right, title or interest in them other than a lien for the lawful charges of care and' custody, is unconstitutional in that it deprives a customer of the legal right to have the reasonableness of the storage charges made tried before a jury, enables the warehouseman permanently to retain the goods irrespective of the lawfulness of his charges, and ousts all the courts of the State of New York of jurisdiction of actions by-customers to replevy their goods of the warehouseman.

Appeal from a judgment of the City Court of the city of New York, in favor of the defendant.

Action against a warehouseman to recover possession of goods stored with him.

Francis Lawton, for appellant.

Joseph I. Green, for respondent.

Fitzsimons, Ch. J.

The plaintiff being the owner of certain chattels stored the same with the defendant, who is in the business of a storage warehouseman. When it suited her purpose to do so she demanded her goods from the defendant, and, as she alleges, tendered all charges due thereon. The defendant admits the demand and alleges that the plaintiff refused to pay the storage charges, and, therefore, he refused to deliver the chattels claimed to her.

The action came on for trial on June 20, 1900, a jury was sworn "and the plaintiff’s counsel opened the case to the jury. The defendant’s counsel then moved to dismiss tire complaint as follows: “ I move now that this complaint be dismissed and judgment directed for the defendant on the ground that, under chapter 633 of the Laws of 1895, no such action as this will lie against a *633warehouseman. The proper party defendant should have been the party who stored the goods, and not the warehouseman. I call your Honor’s attention to the second subdivision of this act which provides 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.’ In other words, the only instance' in which a warehouseman can be made a party to an action of replevin is where his claim is for other than on a lien for storage.” The motion was granted and the plaintiff excepted. No testimony or evidence was given in the action.

In our opinion it was error for the trial justice to dismiss the complaint. The issues made by the pleadings should have been submitted to the jury in the usual manner. The statute referred to, in our judgment, is unconstitutional. The plaintiff had the right to have these issues tried by a jury. This right she is deprived of if the statute in question is good law. Furthermore, it ousts all the courts of the State of all jurisdiction in actions of this character. Apparently, under this statute, all that a storage warehouseman has to do is to fix any charges that he may deem proper, and call it a lawful and reasonable charge for storage, and then he is in a position to retain all goods stored with him, against the owner’s will, until the charge so fixed by him is paid, although it may be excessive and extortionate. He is to be the sole judge of the reasonableness of such charges, and no one, not even a jury, has the right to question the same, and persons storing their goods have no legal remedy to recover the same; every such avenue of relief is closed against them until they have submitted to and complied with the storageman’s demands. We think that the statute is not good law.

The judgment must be reversed and a new trial is ordered, with costs to appellant to abide event.

Hascall, J., concurs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.