The plaintiff- loaned Archer & Co. $5,500 May 9, 1907. He received a note and also a paper, which is apparently a bill of sale: “ Walter B. Manny, Esq., * * * 1 Hotchkiss Chassis, Ho. 1011, Type O, six-cylinders, $5,500, Archer & Co. Paid May 9, 1907. Per Chas. Tntschulte, Cash’r. Present location, Custom House. Selling price, U. S. A. $9,000, for Morgan B. Kent, Boston, body by Flandrau.” Accompanying this was this paper: “ Agreement — Archer & Company & Walter B. Manny.— Walter B. Manny hereby agrees to sell the Hotchkiss 1 Chassis ’ Ho. 1011, Type O, with all equipments complete,, which said W. B. Manny bought from Archer & Co. on May 9,-, at $5,500.00, it being understood and agreed that said W. B. Manny will sell to Archer & Co., and that Archer & Co. agree to repurchase from said W. B. Manny the above-named car at the same price named and at and upon a date not later than three months from this date. It is further agreed by said Manny that the time of this repurchase which Archer & Co. agree to make shall not extend beyond ten days after completion of the car with its body and all equipments, and in case of undue and unavoidable delay, this repurchase shall be made as per attached note within three months.”
*146He received also from. Archer & Co. a- paper dated May tenth inclosing certificates covering insurance to the amount of '$13,500 on three specified Hotchkiss chassis, “ with reference to body builders’ receipts,' as soon as cars are delivered we will mail same to you.”
He also received this paper: .
“ May 15, 1907.
“ Eeceived from Archer & Company Hotchkiss chassis Ho. 1011, to be delivered only on return of this receipt properly endorsed.
“FLAHDEAU & GO.
. “KEYES & WILSOH.”'
Indorsed, “Deliver to tlie order of Walter B. Manny.
“ AKCHEB & CO.”
The plaintiff testified: “After I received this receipt I did not put. my agreement with Archer & Company on the records of the County Clerk of this county. Q. In omitting to do so did you rely upon this receipt ? * * * A. Absolutely. I did not, after receiving that receipt, make any effort before February 10th, 1908, to get physical possession of this chassis in my own hands. Q. In omitting to make any such effort did you rely ■ upon this receipt ? * * * A.-I did.” He further testified that he thereafter received a request from Archer & Co. to extend the tinie on the original note and took a new note, dated December 27, 1907, for $5,000, having received $500 on the original note with interest to that date. “Q. In taking this note and receiving part payment of the original note, did you rely upon the receipt which is in evidence in this case? * * * A. Absolutely.”. Thereafter he called at the office of Keyes & Wilson and called for this chassis and showed this receipt. “Mr. Wilson * * * had some one. look up the matter, and when he got the report on it he turned white and said, ‘ My God, Mr. Manny, I delivered that chassis last summer.’ ” Under cross-examination he said that he never saw Mr. Wilson or had any communication with him until February tenth, and that he never notified him of his relations with Archer & Co. prior to the time he demanded the chassis, which was about nine months from the time he originally got the receipt. “ It was represented to me that this chassis had been contracted to be sold to Mr. Kent of Bos*147ton, at the time I loaned money on it, and when I made my demand I was informed by Mr. Wilson that he had prior to the demand delivered the chassis.”
This judgment was based , upon section 629 of the Penal Code. “ A person who : * * * 2. Carrying on the business of a warehouseman, wharfinger or other depository of property, who issues .any receipt, bill of lading or other voucher for merchandise of any kind, which has not been actually received upon the premises of such person and is not under his actual control at the time of issuing such instrument, whether such instrument is issued to a person as being the owner of such merchandise or as security for any indebtedness, is guilty of a misdemeanor.” (See Laws of 1892, chap. 692.)
Section 632; 11A person mentioned in sections 628 and 629, who sells or pledges any merchandise for which a bill of lading, receipt or voucher has been issued by him, without the consent in writing thereto of the person holding such bill, receipt or voucher, is punishable by imprisonment, *. * Section 633. “A person mentioned in section 629, who delivers to another any merchandise for which a bill of lading, receipt or voucher has been issued, unless such receipt or voucher bears upon its face the words ‘ not negotiable,’ plainly written or stamped, or unless such receipt is surrendered to be canceled at the time of such delivery, * *. * is punishable by imprisonment, * *
The complaint alleges that the defendant is doing business under the name and style of Keyes & Wilson, and also under the name and style of Flandrau & Go., with his principal place of business at 406 Broome street in the city of Mew York, and is engaged in a general carriage business, making bodies for automobiles and storing automobiles and carriages for hire. And it is conceded that the defendant was engaged as alleged in the complaint.
It was proved that judgment was duly recovered by Manny against Archer & Co. and execution returned unsatisfied. In Burnham v. Cape Vincent Seed Co. (142 N. Y. 169) the court said: “ In the case at bar the plaintiff held the cargo of peas as security for the Ontario Bank, and if, before the bank’s debt was paid, he had wrongfully delivered it to the defendant, he would have been criminally liable under section 633 of the Penal Code, and the bank *148could have proceeded against him in ■ a. civil action for damages. (Colgate v. The Pennsylvania Co., 102 N. Y. 120 ; First National Bank of Cincinnati v. Kelly, 57 id. 34.) ”
In Mairs v. Baltimore & Ohio R. R. Co. (175 N. Y. 409) the court, alluding to sections 629 and 633 of the Penal Code, said: “ These provisions of the Code were taken from chapter 326 of the Laws of 1858, as amended by chapter 353- of the Laws of 1859, and chapter 440 of the Laws of 1866. ' Under the statute. all persons aggrieved by a violation of the act were given the right to maintain an action at law against .the violators thereof to recover the damages suffered; but when some of the provisions of the act were transferred to the Penal- Code, that pertaining to the civil remedy was omitted and disappeared from our statute law by a repeal of the statute. At common law the failure to take up a bill of lading, did not furnish cause for action, and it follows that the only civil liability remaining exists by reason of the provisions of the Penal Code, which makes the -omission unlawful .and criminal.” After citing the provisions of the statute, the court proceeds: “There, however, can be no recovery unless damages to the plaintiff resulted from the illegal act.- Where the Legislature prohibits or requires the doing of an act ■ and prescribes a punishment that shall be inflicted for a violation of its mandate, the punishment furnishes the exclusive remedy for the wrong, so far as the public is concerned, and the act cannot be- made the basis of a civil action by an individual for -the recovery óf damages, unless .he has been injured in'his person or property and the damages suffered are the direct and proximate result of the illegal act. In this case the defendants negligently omitted to take up the bill of lading when they delivered the goods upon the order of the consignee. The bill of lading did not have the words ‘not negotiable’ indorsed upon its face, and, therefore, the defendants may be technically guilty of a violation of the statute, but the bill of lading, in fact, was ‘ not negotiable,’ and under the law merchant the defendants would not have been required to take up the bill had it not - been for the provision of the statute. * •
I think this judgment ought to be sustained. I do not think that the fact that the defendant was to do some work on this machine avoids the liability. He issued a “ receipt ” or “ voucher for mer.chan*149disc.” He was a “ warehouseman * * * or other depository of property.” He gave a receipt for some purpose, and its peculiar wording, “ to be delivered only on return of this receipt properly endorsed,” must be construed to mean what is said.' Ordinarily,, as between dealer and manufacturer, no such instrument as this passes. It was to identify and secure this particular machine in specie, and this was so well understood that it was indorsed and delivered over to Manny as a muniment of title and as security for repayment of his loan. It seems to me that the transaction comes fairly within the general purport of the law to secure third persons advancing money or making payments upon the faith of warehouse receipts in their supposed collateral. The plaintiff advanced his money and upon the faith of this receipt extended time of payment, and it was by reason of the defendant’s, carelessness and disregard of the statute and of the obligations that he had himself taken when he gave the receipt that the damage has accrued. I am in favor of an affirmance.
Judgment reversed, new trial granted, costs to appellant to abide event.