In the spring of 1922 plaintiff purchased thirty barrels of whisky in France and caused them to be sent to New York for the declared purpose of transhipment to Mexico. They arrived at New York in June and were stored in defendant's warehouse. Some time between June and September, twenty-seven of the barrels disappared 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), but it was as worthless to plaintiff
as a gem in the sea. The National Prohibition Act 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. Walker Sons, 259 U.S. 80.) Section 3 of title 2 of the act (Mason's U.S. Code, ch. 2, tit. 27, § 12) 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 non-beverage purposes and wine for sacramental purposes may be sold, transported and possessed only as provided. By section 6 of title 2 (Mason's U.S. Code, ch. 2, tit. 27, § 16) 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, ch. 2, tit. 27, § 39) provides that it shall be unlawful to have or possess any liquor which has been used in violating the statute and declares that no property rights shall exist in any such liquor. Concededly, plaintiff did transport the liquor to New York without first obtaining a permit. None could lawfully have been issued. He could not, therefore, lawfully have or possess the whisky, for it had been used in violating the statute, and no property rights existed in it. In Armstrong v.Sisti (242 N.Y. 440, 452) we expressed doubt whether legal damage is sustained or may be proven for deprivation of property which the plaintiff may not legally hold, use or sell. Now the doubt is dispelled and we answer that no damage is sustained.
The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and KELLOGG, JJ., concur.
Judgment accordingly.