Strahlheim v. Wallach — 12 Daly (N.Y.) 313

Majority

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Simon Strahlheim et al., Appellants, against Abraham Wallach et al., Respondents.

(Decided January 21st, 1884.)

Headnote

Where goods in the custom house, before entry for importation from a foreign country, are stopped in transitu by the sellers, the purchasers having made an assignment for benefit of creditors, an action maybe maintained by the sellers to compel the purchasers and their assignee to indorse or assign and deliver the bills of lading and invoices to the sellers, to enable them to enter the goods; and an injunction may be granted, pending the action, against any sale or transfer by the purchasers or the assignee of the invoices or bills of lading.

Appeal from an order of this court denying a motion to continue a preliminary injunction aud appoint, a receiver, and vacating the preliminary injunction.

The action was brought by plaintiffs, copartners under the firm name of Strahlheim & Hertz, against Abraham Wallach and Edward Wallach, composing the firm of A. & E. Wallach, and Frederick Lewis, their assignee for benefit of creditors, and others, alleging in their complaint that' in July, 1883, at the City of Paris, France, they received from the said firm of A. & E. Wallach an order for a quantity of fairs to be manufactured and sold and delivered to A. & E. Wallach at the City of New York, at a certain price, and upon a credit of four months; that at various times in August and September, 1883, said fans were shipped to A. & E. Wallach at the port of New York; that on September 18th, 1883, A. & E. Wallach made an assignment for the benefit of their creditors to the defendant Frederick Lewis ; that subsequently, within a few days, quantities of the fans previously shipped were duly stopped in transitu, before they had come into possession of A. & E. Wallach or of Lewis, their assignee : that at the time they were so stopped no entry of them ha cl been made in the custom house, and neither the freight nor the duties had been paid >

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and that the defendants Wallachs and Lewis refused to assist the plaintiffs to obtain possession of the goods bypassing them through the custom house. Plaintiffs prayed for the appointment of a receiver to take possession of the goods; that the defendants A. & E. Wallach and Lewis be directed to make the necessary entries in the custom house, and do the acts requisite to pass the goods through the custom house ; that if the defendant Lewis, as assignee of A. & E. Wallach, should refuse to pay the freight and duties on the goods, plaintiffs be authorized to do so ; that the right to the possession of the goods, after payment of the freight and duties, be awarded to plaintiffs; and that A. & E. WMlach and their assignee be enjoined and restrained from disposing of the bills of lading and invoices of the goods, or from taking possession or encumbering or disposing of any of the goods.

A preliminary injunction, as prayed for in the complaint, was granted, with an order to show cause why it should not be continued, and why a receiver should not be appointed ; upon the return of which the injunction was vacated, and the motion denied; and from the order entered thereupon, plaintiffs appealed.

jKoone's Goldman, for appellants.

Richard 8. Newcomhe, for respondent.

I see no objection to granting the injunction asked for, and none to the form of action which plaintiffs, as vendors of goods exercising their right of stoppage in transitu, have seen fit to bring in order to enforce their lien in equity. The bills of lading and invoices which they, sent to defendants Wallaeh came into possession of Lewis, the assignee under the general assignment from the Wallachs to him, and he refuses to deliver them.

The goods are in the custom house, where they were sent under general orders, and plaintiffs cannot obtain them without due entry, which can only be made by the owner or con

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signee, or his agent, and. upon production of the bills of lading and the invoices (U. S. Rev. Stat. § 2785).

It is necessary that the documents should not only be delivered by the assignee Lewis, but be indorsed or assigned over to the plaintiffs to enable them to make entry, and the equitable powers of the court should be exercised for the purpose of compelling such transfer.

An injunction pendente lite against any sale or transfer by the assignee or assignors of the invoices or bills of lading seems to be proper. Equitable relief will be granted to the vendor in such a case if it be necessary for the protection of the lien and the goods (Schotsmans v. Lancashire and Yorkshire Railway, L. R. 2 Ch. Ap. 332-839 ; see also Gossier v. Schepeler, 5 Daly 476 ; Rosenthal v. Dessau, 11 Hun 49 ).

The order should be reversed and an order made continuing the preliminary injunction, with $10 costs of motion to plaintiffs, and $10 costs and also disbursements of appeal to appellants.

Van Hoesen and Beach, JJ., concurred.

Order accordingly.