#### John H. Stallman and ano. *v.*Agnes L. Kimberley and ano.

*(Supreme Court, General Term, First Department,*

*Filed July 9, 1889.)*

Warehousemen—When entitled to general lien for charges—Laws 1885, chap. 526, § 1.

By the warehousemen’s lien act (Laws 1885, chap. 526), a warehouseman is placed among ihose who are entitled to a general lien, and not merely to a specific lien for the charges that have accrued upon the particular goods in his possession.

These are cross motions made by the plaintiff and the defendant for judgment in their favor respectively upon a. verdict for the plaintiff, directed by the court at circuit subject to the opinion of the general term.

*Preston Stevenson,*for pl’ff; *Charles Stewart Davidson,*for def’t.

Barrett, J.

This case was tried upon an agreed state of facts, and there are no exceptions. It presents a single question of law, namely, whether under *“*An act to establish and define the lien of warehousmen,” passed June 13, 1885 (chapter 526), the defendant possessed a general lien upon the property in question.

The act reads as follows:

Section 1. A warehouseman or person lawfully engaged exclusively in the business of storing goods, wares and merchandise for hire shall have a lien for his storage charges, for moneys advanced by him for cartage, labor weighing and coopering paid on goods deposited and stored with him, and such lien shall extend to and include all legal demands for storage, and said above described expenses paid which he may have against the owner of said goods; and it shall be lawful for him to detain said goods until such lien is,j)aid.

In construing this act, the existing state of the law should be considered. A warehouseman then had a specific lien. Of that, there can be no substantial doubt. This lien had been asserted in this state in *Schmidt*v. *Blood,*9 *788Wend., 268; and also in Pennsylvania in *Steinman*v. *Wilkins,*7 W. & S., 466. Its existence had been referred to and recognized in *Trust*v. *Pirsson,*1 Hilt., 297; in *Scott*v. *Jester,*13 Ark., 446; and in other cases. Indeed, I find no doubt upon the subject expressed in any case where the specific lien was claimed by a person engaged in the business of warehousing. The lien has been denied in cases where permission was given merely to deposit a chattel in an unoccupied room in a private house. *Alt*v. *Weidenberg,*6 Bosw., 176; see also, *Rivara*v. *Ghio, 3*E. D. Smith, 264; and 18 Fed. R. 528.

Even this was expressly put, upon the ground that the bailee was not a warehouseman and that the chattel was not stored in that capacity, “so as to have a lien by the rules of the common law.” Nor do I think that there was any doubt, at the time of the passage of this act, that the warehouseman had a specific lien for the various subjects enumerated in the act. If he had a lien for storage charges, and for advances of freight made to a carrier *(Sage*v. *Gittner,*11 Barb., 120), *a fortiori*he had the same lien for cartage, labor, weighing and coopering.

Indeed, the doubt which formerly arose with respect to the lien of warehousemen, had its origin in the supposed limitation of the service to mere house-room, and to the absence *of*either a public duty to receive the goods dr of an expenditure thereon of labor and skill.

The real doubt, however, was as to the existence of a general lien. That had also been established with regard to wharfingers, but doubted as to warehousemen. *Rex*v. *Humphrey,*1 McClel. & Y., 194; *Naylor*v. *Mangles,*1 Esp., 109; *Speers*v. *Hartly,*3 id., 81; 2 Kent, §§ 635, 641; Story on Bailments, §§ 452, 453; 3 Parsons on Contracts, 268. There seemed to be no just distinction between the warehouseman and the wharfinger, but ever since the doubt expressed by some of the judges, in *Rex*v. *Humphrey,*the point was left undecided. Yet, in this case, Graham, B., said that, in his experience, he had always “considered the case of a wharfinger and of a warehouseman as standing on the same ground.”

Mr. Story also observes (citation supra): “The case of a wharfinger does not, indeed, seem, m any respect, distinguishable from that of a warehouseman, and it has not, in fact, been distinguished from it in any solemn adjudication.”

It is not necessary to seek the origin of this doubt nor to analyze its justice. It is sufficient, for our purpose, that it exists, and that the legislature undoubtedly determined to solve it in favor of the warehouseman. The act in question was not intended to re-establish what was already established, namely, the specific lien, but to place the warehouseman on the same firm footing with the wharfinger as to the general lien. The latter had acquired the general *789lien, as Lord Kenyon observed in *Naylor*v. *Mangles (supra),*by repeated proof of usage. In time evidence of the usage was no longer required, and it became law.

The statute under consideration settles all questions of usage, renders proof thereof unnecessary, reconciles all existing confusion of mercantile thought or judicial dicta; in fine, puts an end to any possible distinction between the two classes. This is the natural reading of the act and it follows its obvious sense. The section is divisible into two parts. The first gives the hen and clearly specifies the subjects. The second declares that the hen shah extend to and include all legal demands for storage and similar expenses, which the warehouseman may have against the owner of said goods. Not, it will be observed, against the particular goods. That had already been fully provided for in the first division of the section; but against the owner of said goods. This second division would have been quite superfluous if the sole object of the act had been to establish and define a specific lien. The warehouseman had that already by the first division of the section, even if not by the existing law.

Plainly, then,the extension of that hen to ah legal demands for storage, etc., against the owner, is its extension, to all other legal demands, besides those particular demands already provided for. This statute is to be fairly construed. It cannot be said to be in derogation of the common law, for the question was not absolutely settled at common law. But even if it had been, as the act does not take away, change or diminish rights of property, life or liberty, the rule of strict construction should scarcely apply. It would seem, also, as thus read, to be a wholesome act, just and reasonable in itself and tending to facihtate mercantile transfers. Delivery orders will more readily be accepted and honored, when the warehousemen are not required to settle each charge before parting with the goods upon which, specifically, such charge is a lien.

The fact is, warehousing has become an immense industry in these days and the act is nothing more than a fair recognition of the advance. Formerly the wharfinger was in the habit of keeping a warehouse on his wharf and the warehousing business was a sort of subsidiary appendage thereto. Now, warehousing as an independent institution, completely dwarfs the wharfinger; and it would be the height of absurdity to retain the general lien in the one case and deny it to the other.

Upon the whole we are of opinion that the defendants had a general lien upon the goods replevied and that consequently the learned judge erred in directing a verdict for the plaintiff.

Our judgment, therefore, is for the defendants, with costs.

Van Brunt, Oh. J., and Daniels, J., concur.