Gonch v. Republic Storage Co. 

• Decision Date: 31 May 1927
• Citation: 245 N.Y. 272,157 N.E. 136
• Parties: GONCH v. REPUBLIC STORAGE CO., Inc.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 272

157 N.E. 136

GONCH

v.REPUBLIC STORAGE CO., Inc.

Court of Appeals of New York.

May 31, 1927.

Action by Leo J. Gonch against the Republic Storage Company, Inc. Judgment on a verdict for plaintiff was unanimously affirmed by the Appellate Division (218 App. Div. 584, 219 N. Y. S. 46), and defendant appeals by permission.

Judgments reversed, and complaint dismissed.

See, also, 219 App. Div. 709, 219 N. Y. S. 823.

Appeal from Supreme Court, Appellate Division, First department.

Outerbridge Horsey, of New York City, for appellant.

John T. Loughran and Robert H. Charlton, both of New York City, for respondent.

O'BRIEN, J.

In the spring of 1922 plaintiff purchased 30 barrels of whisky in France and caused them to be sent to New York for the declared purpose of transshipment to Mexico. They arrived at New York in June and were stored in defendant's warehouse. Some time between June and September, 27 of the barrels disappeared and a judgment for failure to exercise reasonable care as bailee was entered against defendant. This judgment has been unanimously affirmed, and, by permission of this court, the appeal is taken.

Plaintiff suffered no injury to a lawful property right, and therefore is entitled to no damages. The whisky had no pecuniary value to him. Indeed, it had intrinsic value and thus could be the subject of larceny (People v. Otis, 235 N. Y. 421, 139 N. E. 562), but it was as worthless to plaintiff as a gem in the sea. The National Prohibition Act (U. S. Comp. St. § 10138 1/4 et seq.) deprived him of any property in it and forbade him to possess, transport, use or sell it. On May 15, 1922, a month before the whisky arrived at New York for the avowed purpose of transport to Mexico, the Supreme Court had announced that the transportation of intoxicating liquors from a foreign port through some part of the United States to another foreign port is prohibited. Grogan v. Hiram Walker & Sons, 259 U. S. 80, 42 S. Ct. 423, 66 L. Ed. 836, 22 A. L. R. 1116. Section 3 of Title 2, of the act (Mason's U. S. Code, c. 2, tit. 27, § 12 [U. S. Comp. St. § 10138 1/2aa]) forbids the sale, transport, or possession of any intoxicating liquor, except as authorized in the act, and provides that the statute shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. Liquor for nonbeverage purposes and wine for sacramental purpose may be sold, transported, and possessed only as provided. By section 6 of title 2 (Mason's U. S. Code, c. 2, tit. 27, § 16 [U. S. Comp. St. § 10138 1/2c]) no one may sell or transport any liquor without first obtaining a permit from the commissioner to do so. Section 25 of title 2 (Mason's U. S. Code, c. 2, tit. 27, § 39 [Comp. St. § 10138 1/2m]) provides that it shall be unlawful to have or possess any liquor which has been used in violating the statute and declares that no...