issued to Fanny Mehlsak and transferred to Rosina Sasso. Certificate revoked.

A. M. Sperry, of Albany, for petitioner.

Ashbel P. Fitch and Mott & Grant, all of New York City, for respondent Sasso.

HENDRICK, J. The facts here are not in dispute. There was issued to one Fanny Mehlsak a liquor tax certificate, No. 4638, for premises No. 394 First avenue, New York City, for the excise year commencing October 1, 1912, and ending September 30, 1913. In March, 1914, the state commissioner of excise commenced a proceeding against Fanny Mehlsak to revoke the certificate No. 4638 for a violation of the Excise Law, alleged to have been committed on September 26 and 27, 1913, in that she permitted the premises No. 394 First avenue to become disorderly on those days. The proceeding resulted in the revocation of the certificate on May 19, 1914, because of the violation referred to, although her right to traffic in liquors under that certificate at the First avenue premises had expired on September 30, 1913. The certificate No. 4563, which is sought to be revoked in this proceeding, was issued to Fanny Mehlsak for the First avenue premises on September 27, 1913, for the excise year commencing October 1, 1913, and ending September 30, 1914. That certificate, No. 4563, with the consent of the certificate issuing office, was transferred on November 3, 1913, to one Rosina Sasso, and to premises No. 423 Hudson street, New York City, and the First ave nue premises abandoned for traffic in liquors, in accordance with the provisions of the Liquor Tax Law in such case provided. It is not disputed that the transfer was made long before the proceeding to revoke certificate No. 4638 was commenced, nor that respondent had any knowledge of a violation of the law which took place in September, 1913, by Fanny Mehlsak at the First avenue premises, and it is not claimed that respondent has violated the law at the Hudson street premises since she became the certificate holder or that her premises are not properly conducted.

The question is thus presented: Does the revocation of a prior certificate for a violation of law by a former certificate holder entitle the commissioner of excise to an order of revocation of a subsequent certificate, issued to the person who violated the law, but who transferred the subsequent certificate to an innocent party to traffic in liquors at other premises before the order of revocation of the prior certificate was made? Section 26 of the Liquor Tax Law (Laws 1909, c. 39, as amended by Laws 1911, c. 407) provides that a liquor tax certificate may be sold, assigned, or transferred, but―

"no such sale, assignment or transfer shall be made except in accordance with the provisions of this chapter, nor permitted by any holder of a certificate who (a) shall have been convicted, (b) or be under indictment, (c) or against * * * whom a complaint under oath shall have been made, and be pending, for violating the provisions of this chapter, (d) or who shall have violated any provision of this chapter."

Conditions are thus imposed which qualify the absolute right to a transfer of the certificate. The right to transfer a certificate is de

pendent upon these conditions, and all of them must not only exist. at the time of the transfer, but it is also required that the holder shall not have violated any provision of the Liquor Tax Law. Fanny Mehlsak, by permitting her place to become disorderly on September 26 and 27, 1913, violated the law and forfeited her right to a new certificate for a period of one year. Liquor Tax Law, § 15, subd. 8; People ex rel. Hupfel's Sons v. Cullinan, 95 App. Div. 598, 88 N. Y. Supp. 1022. There can be no doubt that a violation of the law by Fanny Mehlsak under her certificate expiring September 30, 1913, would have made the subsequent certificate held by her revocable, as the right to a cancellation of a certificate, when it is warranted by the evidence, exists at the date of the institution of the proceedings, and is not impaired by the expiration of the license. Matter of Farley, 161 App. Div. 205, 146 N. Y. Supp. 473. The limitation or forfeiture of the rights of a certificate holder in a liquor tax certificate equally affects the rights of his assignees, who take it "subject to the conditions and restrictions with which the holding of the same by the assignor was invested" (People ex rel. Miller v. Lyman, 156 N. Y. 407, 50 N. E. 1112), and a certificate held by an assignee may be revoked for a violation of the law committed by the assignor, even though the assignee be an innocent party (Matter of Cullinan, 87 App. Div. 47, 83 N. Y. Supp. 1025; Matter of Cullinan v. Gretes, 104 App. Div. 205, 93 N. Y. Supp. 492, affirmed without opinion 185 N. Y. 546, 77 N. E. 1184). Therefore I hold petitioner is entitled to judgment revoking certificate No. 4563. Certificate revoked.

MARTORANA et al. v. BALTIMORE & O. R. CO.

(City Court of New York, Trial Term. February 23, 1915.)

CARRIERS (§ 115*)-SHIPMENT-REPLEVIN-LIABILITY OF CARRIER.

Where a shipment of fruit was taken from a carrier by replevin and sold at a depreciated price under an order obtained without notice to the consignee, whose claim to the fruit was stated in the attachment affidavit, and where thereafter, without the consignee's knowledge or consent, the carrier and plaintiff in replevin stipulated that the proceeds should be turned over to such plaintiff, and that the bond required for the consignee's protection should be canceled, the carrier was liable for the consignee's damages, especially where the amount involved was manifestly not within the jurisdiction of the court entertaining the replevin action, and it appeared that the plaintiff in replevin could not have proven ownership of any part of the fruit.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 501-507; Dec. Dig. § 115.*]

Action by Salvatore Martorana and another against the Baltimore & Ohio Railroad Company. Judgment for plaintiffs.

Andrew S. Fraser, of New York City, for plaintiffs.

Cravath & Henderson, of New York City (Ralph J. M. Bullowa and Henry E. Chapin, both of New York City, of counsel), for de-fendant.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

RANSOM, J. The plaintiffs are entitled to judgment against the defendant carrier for the value of the goods consigned to them, not withstanding the carrier's claim that it yielded custody under compulsion of legal process and gave notice thereof to the plaintiffs. Inasmuch as counsel asked me to hear the case without a jury, and presented with much ability a number of questions which apparently have not been passed upon in reported decisions, it seems due to them to make a brief statement of the facts as found, and of the reasons why, in this instance, the carrier's plea of justification breaks down.

On October 28, 1911, Frank Panno, a nephew of one of the plaintiffs, shipped 362 boxes or cases of mixed fruit from Chicago to the plaintiffs in New York, in car No. 14980, over the defendant's lines. On the same day Panno mailed to the plaintiffs the bill of lading and a bill for $1,057.50 for the fruit, as sold and delivered by him to them. The bill he receipted before mailing, as a credit on account of his indebtedness to the plaintiffs from previous dealings. The 362 cases were a part of a considerably larger quantity of similar fruit which Panno had purchased from various Chicago dealers, among others the Merchants' Fruit Exchange and the Chicago Green Fruit Auction Company. Panno had been engaged in the buying, selling, and shipping of similar fruit in Chicago for upwards of a year, and had dealt frequently with the plaintiffs and with the concerns from which the fruit in question was bought.

The car load of fruit arrived in New York on November 1st. Om that day it was taken from the defendant's custody by a city marshal, under a writ of replevin issued by the Municipal Court, upon an affidavit verified that day by James Fechteg, Jr., who made oath that he was the agent of the Merchants' Fruit Exchange and the Chicago Green Fruit Company, Illinois corporations, and that those corporations were "the owners and entitled to the immediate possession of" the fruit in car No. 14980. The sole defendant in the replevin action was the carrier, but the affidavit stated that the present plaintiffs claimed the fruit. Although the sale price of the fruit to Panno in Chicago exceeded $1,000, the replevin action was started in the Municipal Court, and the affidavit for the writ stated that "the actual value of the property is $400." The counsel who tried the present case for the defendant carrier, appeared as attorney for Fechteg throughout the replevin proceeding. A surety company bond for $1,000 was furnished by Fechteg.

On November 2d, upon an affidavit made by Mr. Bullowa, an order was entered, directing the sale of the fruit by the Connolly Auction Company. On November 3d the fruit was sold, for the sum of $791.51, nearly $300 less than its market price in Chicago, but nearly twice the value stated in the two affidavits, and nearly $300 in excess of the jurisdiction of the Municipal Court. No notice of the seizure or sale of the fruit, or of any of these proceedings, was given to the consignees or the consignor before November 4th. On the morning of November 9th, the action was dismissed in the Municipal Court, but later in the same day the defendant's attorneys sent another letter, notifying of the pendency of that action and making no mention of its dismissal. Subsequently, without notice or information to the

consignees, the carrier's attorneys signed a stipulation reviving the proceeding and restoring the case to the calendar. The consignees took no steps to intervene in or defend the action until January 25, 1912, when they asked to be impleaded, and were informed by the defendant's attorneys that, two hours before, they had joined in signing a stipulation which, as later developed, in terms consented to the entry of an annexed order directing that the Connolly Auction Company. turn over the net proceeds of the fruit, $669.18, to the two Illinois corporations, releasing the carrier from liability, canceling the surety bond which Fechteg had furnished as security against the event that other persons might establish title to the fruit, and formally discontinuing the action. Although notified on January 25th that the consignees wished to be impleaded in and defend the action, the carrier's attorneys did nothing to withdraw their consent from the stipulation, upon which an order was entered four days later.

Under these circumstances, is the fact of the seizure of the fruit by a city marshal under writ of replevin a sufficient excuse for the carrier's failure to deliver the fruit to the consignees named in its bill of lading? Answer to this question involves some re-examination of the historic origin of the legal rules fixing the liability of common carriers. In the days when the functions of public carriers were fulfilled largely by use of stage coaches, and the carrier's journey brought him into communities with widely differing degrees of respect for the property rights of the absent owner, the carrier was held absolutely liable for the safety of goods in his care, unless act of God or public enemies destroyed them. If a highwayman demanded them, or a thief tried to pilfer them, he must defend and keep them at his peril, or answer to their owner for their loss. This insurer's liability was imposed on grounds of public policy, especially to prevent fraud or collusive action on the part of the carrier himself, in yielding up goods to persons not entitled to them.

Then, as courts and legal processes developed in the several communities, the question of an extension of the doctrine of vis major presented itself. Oftentimes the appearance of a constable with a writ was no less the result of collusion and connivance than had been the appearance of the highwayman in the earlier day; but what was the measure of the carrier's duty when confronted with a judicial writ for the seizure of goods in his care? Must he resist sheriff and constable with physical force? Must he tarry and delay his journey, so as himself to contest in court the rightfulness of the seizure? To subject him to the first necessity would only make his calling extrahazardous and bring judicial processes into disrespect; to subject him to the latter alternative would make impossible the seasonable completion of his journeys with the goods of other persons. It was felt that questions of title should be determined by trial in a court, and not by debate between a coach driver and a constable. Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33. Accordingly, the changed conditions and changed conceptions of public policy emancipated the carrier from those alternatives, and prescribed a rule within which he could safely yield up goods claimed by writ of court.

In order to prevent the carrier's custody from being an effective

bar to the recovery of stolen goods, it had very early been held that, under any circumstances and irrespective of the issuance or validity of any writ, the carrier could excuse delivery to the named consignee by showing that he delivered instead to the person who was the true owner and the one really entitled to possession of the goods. Eytinge v. Atlantic Transport Co., 160 App. Div. 635, 145 N. Y. Supp. 1054; Western Transp. Co. v. Barber, 56 N. Y. 544; Mierson v. Hope, 32 N. Y. Super. Ct. 561, 573; Robinson v. Memphis & C. R. R. Co. (C. C.) 16 Fed. 57. In order, however, that the car rier might not be required, impromptu and at his peril, to decide. whether the person suing out a writ was in fact the true owner, it came to be held in most jurisdictions that, irrespective whether the claimant by writ was the true owner, the carrier could justify his relinquishment of the property to an officer of the court and to a judicial determination of the consignee's and the claimant's title if (when sued by the consignee) he could show :

(1) That he delivered up the property in pursuance of a judicial writ which was regular and valid on its face. Kiff v. Old Colony & Newport Ry. Co., 117 Mass. 591, 19 Am. Rep. 429; Merz v. Chicago & N. W. Ry. Co., 86 Minn. 33, 90 N. W. 7; Bliven v. Hudson R. R. R. Co., 36 N. Y. 403.

(2) That he undertook and maintained the defense of the consignee's title against the writ, or that he gave immediate notice to the consignee of the seizure of the goods, and of the need that the consignee himself should act to defend the latter's claim to them. Spiegel v. Pacific Mail S. S. Co., 26 Misc. Rep. 414, 56 N. Y. Supp. 171; American Express Co. v. Mullins, 212 U. S. 311, 29 Sup. Ct. 381, 53 L. Ed. 525, 15 Ann. Cas. 536; The M. M. Chase (D. C.) 37 Fed. 708; Merz v. Chicago & N. W. Ry. Co., supra; Scranton v. Farmers' & M. Bank, 24 N. Y. 424, 427; Bliven v. Hudson R. R. R. Co., supra; Thomas v. Pacific Express Co., 73 Minn. 185, 75 N. W. 1120; Ohio & M. Ry. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727, and other cases hereinafter summarized.

(3) And that he (the carrier) lost custody of the goods without fraud, collusion, connivance, or consent on his part, but only through proper deference to the mandate of a judicial tribunal. American Express Co. v. Mullins, 212 U. S. 311, 29 Sup. Ct. 381, 53 L. Ed. 525, 15 Ann. Cas. 536; Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33; Robinson v. Memphis & C. R. R. Co. (C. C.) 16 Fed, 57.

In other words, if confronted with a judicial writ valid and regular on its face, the carrier was entitled to yield up the goods to the court, and thereupon either tarry and defend the suit himself, or promptly notify the owner to defend and then go his way, leaving the question of title to judicial arbitrament. Only in the event that the carrier could show that he yielded custody to the true owner, could he justify any delivery through consent or connivance on his part, or otherwise than through a judicial determination in which he had maintained the consignee's interests or had seasonably called on the consignee to maintain them.

In the case at bar the carrier has not shown that it in fact delivered the fruit or the proceeds thereof to the rightful owner. Panno's busi