(dissenting) :
By the settlement with the owners of the hides and the delivery of the warehouse receipts the title to the hides passed to the insurance companies to the knowledge of the defendant, while the hides were still in the possession of the defendant as warehouseman, and before they had been uncovered or removed. As warehouseman it then became the duty of the defendant to deliver the hides to the insurance companies, and the same duty continued under the contract made by the defendant with the representative of the insurance companies for the excavation of the hides from the ruins. It is alleged in the complaint that the defendant, in violation of its duty in this regard, failed to deliver the hides to the plaintiff, and, without the plaintiff’s knowledge or consent, deliv*412ered them to' other parties, and the action is brought to recover the damages thereby sustained. The measure of damages is clearly the value of the hides at the time they were excavated and'delivered to other parties. It is not material to the plaintiff’s right of recovery whether the delivery to other parties was innocently through a mistake of fact or law, or whether it was tortious. I do not question the doctrine that if the hides were taken from the possession of the defendant by legal authority it would not be liable; but in these circumstances it was incumbent on the defendant to show that the health authorities, in the exeipise of their legal rights, took possession of and removed the hides. (Roberts v. S. S. D. Co., 123 N. Y. 57.) I am of opinion that the evidence required the submission of the case to the jury, and the exception to the dismissal of the complaint was well taken. There was evidence tending to show or fairly justifying the inference of collusion between the defendant and Weil & Brothers, the former owners of the hides, and some of the. health authorities. The wrongful interference of Weil & Brothers and their attempt to get possession of this property, after their loss had been adjusted and the title had passed to the insurance companies, to the knowledge of the defendant, clearly appears. After the defendant had contracted with the insurance companies to excavate the hides on a quantum meruit it received a proposition from Weil & Brothers to excavate the hides for them, for the consideration of $1,000, which the defendant took under serious consideration, and apparently only refrained from accepting under legal advice. It is to be borne in mind that no action was taken by the board of health until the twenty-fourth day of July. The original understanding between the defendant and the representative of the insurance companies was that as the hides were excavated they would be sold from' time to time and sufficient retained to compensate the defendant. The hides being bonded and the-duty not having been paid thereon, this plan could not be carried out on account of the refusal of the custom house authorities to consent thereto until all the hides should be excavated. As the hides were removed they were piled and stored on the ■ premises. The representative of the insurance companies apparently accepted the action of the customs officials as final, but it seems that Weil & Brothers made efforts to have the government officials release the hides; *413The hides were released, and the fair inference is that it was at the instance of Weil & Brothers. Without consulting the representative of the insurance companies, who appeared on the scene daily, the defendant on or about the twenty-first day of July, three day's prior to any action by the board of health, loaded two cars' with these hides, and the evidence justifies the inference that it either billed or consented to the billing of one of the cars to Salamanca and one to Gowanda in the name of Weil & Brothers, and the cars Avere removed from the immediate vicinity. Whether the cars were actually shipped at that time does.not definitely appear, but there is no evidence that they were seen subsequently, although in answer to inquiries on the part of the representative of the insurance companies it was claimed on the part of the defendant that they had been sent to a siding or switch near by, and that they had been subsequently returned to the vicinity of the warehouse on his request for the purpose of having the sale. It appears that this shipping bill or receipt was subsequently canceled and a neAV one substituted, showing that the cars Avere shipped by Harrington, Avhóm the president of the board of health had directed to remove the hides, but the date Avas not changed. In these circumstances the inference Avould fairly be justified that these two carloads were shipped prior to the action of the board of health. Nothing occurred prior to the time that these cars were originally billed to warrant the action of the defendant in billing or shipping them or permitting this to be done. The only interference by the health authorities down to that time was oral directions by the president of the board of health, without any action on tlie part of the board, to the defendant’s president and some of its employees, which Averé communicated to the representative of the insurance companies, that the hides Avere a menace to public health and must be removed, except that after the president of the board of health kneAv that the insurance companies were the parties in interest, it appears that on the nineteenth of July he wrote to Weil & Brothers, directing the removal of the hides and saying that the board of health' had declared them to be a nuisance, and it also appears that Weil & Brothers had in their possession what purported to be a certificate o,f the clerk of the board of health, addressed to the collector of the port of New York, certifying that the hides had been declared by *414the board to be a nuisance. There had beven no determination by the board that the hides constituted a nuisance, and there was no authority on the part of the board of health or any one connected with it to remove them at this time. The plaintiff, therefore, was entitled to go to the jury as to the defendant’s liability as to these two cars, if not to a direction of a verdict thereon, provided it gave evidence of damages, which I think it did. The evidence shows the number of hides, their condition, the market value of sound hides, that about one-half of these hides were sound, and that the other half were damaged about fifty per cent. This evidence would manifestly justify a recovery of substantial damages.
Moreover, I think questions of fact were presented requiring the submission to the • jury of the plaintiff’s right to recover the other eight carloads of hides. The statute (Gen. Stat. N. J. 1634 et seq) regulating the powers and duties of the board of health of Hoboken, so far as drawn to our attention, does not provide for a notice of hearing to the owner before property may be condemned "as a nuisance injurious to public health. It is unnecessary to determine, however, whether any action that could be taken by the board of health in these circumstances would justify the confiscation of private prop-. erty as a nuisance; for, although the board of health acting' ex parte adjudged these hides to be a menace to the public health and directed that thfe owners be ordered to remove them,-it did not direct the defendant tó .remove them and did not authorize .airy one to remove ,tliem in behalf of the board of health. It is claimed that the removal was made, not by the defendant, but by Harrington acting under a" contract with the president of the board of health. The board of health did not authorize this contract, and if the eight cars were removed thereunder the action was without legal authority and should not have been acquiesced in by the defendant. (Roberts v. S. S. D. Co., supra) I am of opinion that it would not have been acquiesced in by the defendant had not the defendant, Weil & Brothers, the president of the board of health and the contractor been acting in collusion.
I, therefore, dissent from the affirmance.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs.