When to exist. § 2. The lien provided for in the preceding section, shall not exist where such consignee shall have notice, by the bill of lading or otherwise, at or before the advancing of any money or security by him, or at or before the receiving of such money or security by the person in whose name the shipment shall have been made, that such person is not the actual and bona fide owner thereof.

28 Barb., 178; 6 N. Y., 374.

In what case the factor or agent is deemed the true owner. § 3. Every factor or other agent, entrusted with the possession of any bill of lading, custom-house permit, or warehouse-keeper's receipt for the delivery of any such merchandise, and every such factor or agent not having the documentary evidence of title, who shall be entrusted with the possession of any merchandise for the purpose of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person, for the sale or disposition of the whole or any part of such merchandise, for any money advanced, or negotiable instrument or other obligation in writing given by such other person upon the faith thereof.

1 Sweeny, 436; 1 Hun, 196; 3 T. & C., 693; 6 N. Y., 374; 3 Denio, 472; 1 E. D. Smith, 7; 4 Denio, 323; 45 N. Y., 620; 1 Bosw., 504; 7 Daly, 232; 18 Hun, 387; 16 Abb. Pr., N. S., 411; 71 N. Y., 353; 10 J. & S., 522; 60 N. Y., 40; id., 73; 61 N. Y., 283; 19 Hun, 21; 18 Hun, 277; 74 N. Y., 568; id., 587; 34 Hun, 534; 106 N. Y., 203.

Right in case of deposit. § 4. Every person who shall hereafter accept or take any such merchandise in deposit from any such agent, as a security for any antecedent debt or demand, shall not acquire thereby, or enforce any right or interest in or to such merchandise or document, other than was possessed or might have been enforced by such agent at the time of such deposit.

3 Denio, 472.

Rights of the true owner of merchandise. § 5. Nothing contained in the two last preceding sections of this act, shall be construed to prevent the true owner of any merchandise so deposited, from demanding or receiving the same, upon repayment of the money advanced, or on restoration of the security given, on the deposit of such merchandise, and upon satisfying such lien as may exist thereon in favor of the agent who may have deposited the same; nor from recovering any balance which may remain in the hands of the person with whom such merchandise shall have been deposited, as the produce of the sale thereof, after satisfying the amount justly due to such person by reason of such deposit.

6 N. Y., 374.

Common carrier. § 6. Nothing contained in this act shall authorize a common carrier, warehouse-keeper, or other person to whom merchandise or other property may be committed for transportation or storage only, to sell or hypothecate

the same.

1 Bosw., 505; 102 N. Y., 120.

[Section 7 repealed by L. 1886, ch. 593.]

Powers of the court of chancery. § 8. Nothing contained in the last preceding section, shall be construed to prevent the court of chancery from compelling discovery, or granting relief upon any bill to be filed in that court by the owner of any merchandise so entrusted or consigned, against the factor or agent by whom such merchandise shall have been applied or sold contrary to the provisions of the said section, or against any person who shall have been knowingly a party to such fraudulent application or sale thereof; but no answer to any such bill shall be read in evidence against the defendant making the same, on the trial of any indictment for the fraud charged in the bill.

L. 1885, Chap. 526 – An act to establish and define the lien of warehousemen.

Warehousemen to have lien for storage charges, etc. 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 paid.

ARTICLE THIRD.

UNCLAIMED BAGGAGE AND OTHER GOODS.

L. 1837, Chap. 300— An act relative to unclaimed trunks and baggage. Description to be entered in a book. SECTION 1. The proprietor or proprietors of the several lines of stages, and the proprietors of the several canal boat lines, and the proprietors of the several steamboats, and the several incorporated railroad companies, and the keepers of the several inns and taverns within this state, who shall have any unclaimed trunks, boxes or baggage within his, their or either of their custody, shall immediately enter the time the same was left, with a proper description thereof, in a book to be by them provided and kept for that purpose. In case the name and residence of the owner shall be ascertained, it shall be the duty of such person who shall have any such property as above specified, to immediately notify the owner thereof by mail.

45 N. Y., 158.

Description of property to be made and published. § 2. In case there shall not be any information obtained as to the owner, it shall be the duty of the person having the possession thereof, to make out a correct written description of all such property as shall have been unclaimed for thirty days, stating the time the same came into his possession, and forward said description to the editor of the state paper, whose duty it shall be, on the first Mondays of July, October, January and April in each year, to publish the same in the state paper once a week for three weeks successively.

If not claimed for sixty days to be opened and inventory to be made; when to be sold at auction. §3. In case the said property shall remain unclaimed for sixty days after the said publication, it shall be the duty of the person or company having possession thereof, to apply to a magistrate of the town or city in which said property is retained, in whose presence and under whose direction said property shall be opened and examined, and an inventory thereof taken by said magistrate; and if the name and residence of the owner is ascertained by such examination, it shall be the duty of the magistrate forthwith to direct a notice thereof to such owner, by mail; and if said property shall remain unclaimed for three months after such examination, it shall be the further duty of the person or company having possession thereof to apply to a magistrate as aforesaid; and if said magistrate shall deem such property of sufficient value, he shall cause the same to be sold at public auction, giving six days' previous notice of the time and place of such sale; and from the proceeds of such sale he shall pay the charges and expenses legally incurred in respect to said property, or a ratable proportion thereof to each claimant, if insufficient for the payment of the whole amount; and the balance of the proceeds of such sale, if any, the said magistrate shall immediately pay to the overseers of the poor of said town or city, for the use of the poor thereof; and the said overseers shall make an entry of such amount, and the time of receiving the same, upon their official records, and it shall be subject, at any time within seven years thereafter, to be reclaimed by, and refunded to, the owner of such property his heirs or assigns, on satisfactory proof of such ownership.

Expense to be a lien on property. § 4. The person making the entry of unclaimed property as above specified, shall be entitled to twelve and a half cents for each trunk, box, bale, package or bundle so entered, and shall have a lien on the property so entered, until payment shall be made; and in case any additional expense shall be incurred for printing, the lien shall continue until payment shall be made for such additional expense.

Penalty. § 5. In case any person shall neglect or refuse to comply with the provisions of this act, he shall forfeit the sum of five dollars for each and every trunk, box or bundle of baggage so neglected as above specified, to the benefit of any person who shall sue for the same, in his own name, in an action of debt in any court having cognizance thereof.

L. 1855, Chap. 523 —An act in regard to unclaimed express freight. Express companies may sell unclaimed articles. SECTION 4. Every express company, or person or persons, engaged in the express business, who shall have had any unclaimed article, goods, or things, not perishable, in its, his, or their possession, for a period of one year at least, may proceed to sell the same at public auction, and out of the proceeds may retain the charges of transportation and storage of such article, goods or thing, and the expenses of advertising and sale thereof; but no such sale shall be made, until the expiration of four weeks from the first publication of notice of such sale, in a newspaper published at or nearest the place at which such article, goods, or thing, was directed to be left, and also at the place where such sale is to take place; and said notice shall contain a description of such article, goods, or thing, the place at which the same was to be left, as near as may be, together with the name of the person to whom directed, if known; and the expenses incurred for advertising shall be a lien upon such article, goods, or thing, in a ratable proportion, according to the value of each article, package or parcel, if more than one.

In case of perishable articles. § 2. In case such unclaimed article, goods, or thing, shall in its nature be perishable, the same may be sold as soon as it can be, on giving the notice required in the preceding section, after its receipt at the city, town, or village, to which it was directed.

Must keep an account and refund the owner. § 3. Such express company, or person or persons engaged in the express business, shall make an entry of the balance of the proceeds of the sale, if any, of each article, goods or thing directed to the same person, as near as can be ascertained, and at any time within five years thereafter, shall refund any surplus so retained to the owner of such article, goods, or thing, his heirs or assigns, on satisfactory proof of such ownership.

Or pay to county treasurer. § 4. In case such balance shall not be claimed by the rightful owner within five years after the sale as above specified, then it shall be paid to the county treasurer, for the use of the county poor of said county.

L. 1879, Chap. 336 -An act to enable storage warehousemen to collect their charges upon goods deposited with them by the sale thereof. When may sell property to pay charges; notice. SECTION 1. Every warehouse company, or person or persons, engaged in the warehouse business, who shall have had in his or their possession any goods, wares, or merchandise by virtue of any agreement or warehouse receipt for the storage of the same on which or any part thereof there may be due one year's storage, may proceed to sell the same at public auction, and out of the proceeds may retain the charges for storage of said goods, wares, and merchandise, and any advances that may have been made thereon by him or them, and the expense of advertising and sale thereof; but no

such sale shall be made until after the giving of a printed or written notice of such sale, to the person or persons in whose name or names such goods, wares and merchandise were stored, requiring him, her or them,naming them, to pay the arrears or amount due for such storage, and in case of default in so doing, that such goods, wares and merchandise will be sold to pay the same, at a time and place to be specified in such notice. [Thus amended by L. 1883, ch. 421.]

Notice, how served. § 2. The notice required by the last preceding section shall be served personally, at least four weeks before the time of such sale upon the party storing the goods, providing such service can be made with reasonable diligence within the state of New York. If the party storing such goods cannot with reasonable diligence be found within the state of New York, then such notice shall be given by publication once in each week for six successive weeks, before the time of such sale in a newspaper published at or nearest the place, where such sale is to take place. In the event that the party storing such goods or merchandise shall have parted with the same, and the purchaser shall have notified the warehouseman with his address, such notice shall be given to such person in lieu of the person storing the goods.

Surplus of proceeds, how disposed of. § 3. Such warehouse company, or person or persons, engaged in the warehouse business, shall make an entry in a book kept for that purpose of the balance or surplus of the proceeds of the sale, if any, and such balance or surplus shall be paid over to such person or persons entitled thereto within thirty days after such sale and after the expiration of said thirty days, such balance or surplus shall be paid by such warehouse company, or person or persons, engaged in the warehouse business to the county treasurer; or if in the city of New York to the chamberlain of said city, for the use of the poor, unless called for or claimed by the rightful owner within five years after the receipt thereof, and shall at the same time file with said treasurer or chamberlain an affidavit in which shall be stated the name and place of residence, so far as the same are known of the person whose goods or merchandise have been sold, the articles sold, and the prices at which they were sold, the name and residence of the auctioneer making the sale, together with a copy of the notice published and how served, whether by personal service or by mailing, and if not so served, the reason therefor.

ARTICLE FOURTH.

CONDITIONAL SALES OF PERSONAL PROPERTY.

L. 1883, Chap. 383–An act entitled "An act relating to certain contracts for the lease or conditional sale of railroad equipment and rolling stock and providing for the record thereof."

Conditional sale required to be evidenced in writing, recorded, etc. SECTION 1. Whenever any railroad equipment and rolling stock shall hereafter be sold, leased or loaned on the condition that the title to the same, notwithstanding the possession and use of the same by the vendee, lessee or bailee, shall remain in the vendor, lessor or bailor, until the terms of the contract as to the payment of the instalments, amounts or rentals payable, or the performance of other obligations thereunder shall have been fully complied with, but also providing that title thereto shall pass to the vendee, lessee or bailee on full payment therefor as aforesaid, such contract shall be invalid as to any subsequent judgment creditor or any subsequent purchaser for a valuable consideration without notice, unless

1. The same shall be evidenced by writing, duly acknowledged before some person authorized by law to take acknowledgments of deeds.

2. Such writing shall be recorded in the same book as mortgages are recorded,. in the office of the clerk of the county in which is located the principal office or place of business of such vendee, lessee or bailee within the state, or in the office of the register in counties where there is a register's office.

3. Each locomotive or car so sold, leased or loaned, shall have the name of the vendor, lessor or bailor, or the assignee of such vendor, lessor or bailor, plainly marked upon both sides thereof, followed by the word owner, lessor, bailor or assignee, as the case may be.

This act how applicable to former contracts. § 2. This act shall not be held to apply to or invalidate any contract heretofore made, of the character described in the first section, but the same shall be and remain valid if recorded within ninety days from the date hereof.

L. 1884, Chap. 315-An act requiring contracts for the conditional sale of personal property on credit to be filed in the town clerks' and other offices.

Contracts for conditional sales to be void if not filed. SECTION 1. In every contract for the conditional sale of goods and chattels hereafter made which shall be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things contracted to be sold, all conditions and reservations which provide that the ownership of such goods and chattels is to remain in the person so contracting to sell the same or other person than the one so contracting to buy them until said goods or chattels are paid for, or until the occurring of any future event or contingency shall be absolutely void as against subsequent purchasers and mortgagees in good faith, and as to them the sale shall be deemed absolute, unless such contract for sale with such conditions and reservations therein, or a true copy thereof shall be filed as directed in the succeeding section of this act.

13 Daly, 247.

Where to be filed. § 2. The instruments mentioned in the preceding section shall be filed in the several towns and cities of this state, where the person to whom such property is so contracted to be sold, if a resident of this state, shall reside at the time of the execution thereof; and if not a resident, then in the city or town where the property so contracted to be sold shall be at the time of the execution of such instrument. In the city of New York such instrument shall be filed in the office of the register of the city, and, in the county of Kings, in the office of the register of said county. In the several cities of this state, other than the cities of New York and Brooklyn, and in the several towns of this state in which a county clerk's office is kept, in such office; and in each of the other towns in this state, in the office of the town clerk thereof. If the conditional vendee be a railroad corporation, the instrument mentioned in the preceding section shall be filed in the office of the clerk of each county through which its railroad is located, or, in counties where there is a register, in the office of the register, and such filing shall be deemed sufficient for all the purposes of this act. Such registers and clerks are hereby required to file all such instruments aforesaid, presented to them respectively for that purpose, and to indorse thereon the time of receiving the same, and shall deposit the same in their respective offices, to be kept there for the inspection of all persons interested. [Thus amended by L. 1885, ch. 488.]

22 W. D., 109; 43 Hun, 58.

To cease to be valid after one year, unless copy and statement is filed. § 3. The conditions and reservations specified in the first section of this act which may be in any instrument filed in pursuance of this act shall cease to be valid against subsequent purchasers or mortgagees in good faith after the expiration of one year from the filing of such instrument, and as to them the sale shall then be deemed absolute, unless, within thirty days next preceding the expiration of each and every term of one year after the filing of such instrument a true copy of such instrument together with a statement exhibiting the interest of the person so contracting to sell such property, in the property thereby claimed by him by virtue thereof, shall be again filed in the office of the clerk or register aforesaid of the