Pulvino v. Whitney Elevator & Warehouse Co.

Headnote

Conversion — warehousemen — loss of lien for warehouse charges.

Pulvino v. Whitney Elevator & Warehouse Co., 186 App. Div. 937 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 2, 1918, affirming a judgment in favor of plaintiffs entered upon a verdict. The complaint

sets forth separately two causes of action: First. One to recover damages for breach by defendant of an alleged contract entered into by defendant with plaintiffs whereby defendant was to cause tó be insured or was to keep insured for plaintiffs’ protection against fire, certain casks of wine then in store in defendant’s warehouse, the contents of the latter having been destroyed by fire. Second. One to recover damages in conversion on account of certain of said casks subjected to the fire but subsequently salvaged by defendant and later sold by defendant to a third party. At the close of the evidence the trial court dismissed the complaint as to the first cause of action but sent the case to the jury upon the second, resulting in a verdict for the plaintiffs. The Appellate Division held that the defendant having sold the wine without notice to the owners and having delivered up possession thereof, lost its lien for warehouse charges (General Business Law, § 114); and that, in the absence of any affirmative allegation in the answer, setting up warehouse charges by way of recoupment, setoff or counterclaim, no allowance therefor can be made in this action.