| New York Court of Chancery | Dec 29, 1922
The issue here presented involves a determination of the priority of liens.
Defendant holds and claims a lien upon a certain automobile, which automobile is subject to the lien of a certain chattel mortgage in which mortgage complainant is) mortgagee.
Complainant’s mortgage was executed December 5th, 1921, was promp-tfy recorded, and is due and payable. Defendant is a garage keeper and automobile repairman; his lien is claimed for repairs made to the mortgaged automobile in May, 1922, at the request of the owner who- is the mortgagor. The present controversy is as to the priority of tire respective liens of complainant and defendant.
Defendant’s lien is claimed under the provisions of the legislative act of April 14th, 1915. P. L. 1915 p. 556. The first section of that act provides:
*293 “All persons or corporations engaged in the business of keeping a garage or place for the storage, maintenance, keeping or repair of motor vehicles and in connection therewith stores, maintains, keeps or repairs any motor vehicle or furnishes gasoline, accessories or other supplies therefor at the request or with the consent of the owner or his representative, whether such owner be a conditional vendee or a mortgagor remaining in possession or otherwise, has a lien upon such motor vehicle or any part thereof for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline, accessories or other supplies therefor, and may without process of law detain such motor vehicle at any time it is lawfully in his possession until such sum is paid.”
The act further provides for the sale of the automobile so held at public auction, certain prescribed notices of sale to be first given, and that the proceeds of sale shall be applied to the payment of the lien and the expenses of the sale, and the balance, if any, paid to the owner or his representative.
The great number and variety of decisions in controversies of this general nature will be disclosed by reference to an extended editorial note in L. R. A. 1915 D1149. In this state the only adjudications in cases of this general nature which have been brought to my attention are White v. Smith, 44 N. J. Law 105; Sullivan v. Clifton, 55 N. J. Law 324, and Ruppert v. Zang, 73 N. J. Law 216; Crucible Steel Co. v. Polack Tyre & Rubber Co. 92 N. J. Law 221; Stern v. Ward, 94 N. J. Law 279, and Lanterman v. Luby (New Jersey Court of Errors and Appeals), 114 A. 325" court="N.J." date_filed="1921-06-20" href="https://app.midpage.ai/document/lanterman-v-luby-8273730?utm_source=webapp" opinion_id="8273730">114 Atl. Rep. 325. White v. Smith involved an artificer’s claim of common law lien for repairs made to a carriage. A wife was the owner of the carriage and had allowed her husband to use it in his business and become its apparent owner; the husband had it repaired. The claim of lien was sustained, in analogy to claims of shipwrights as exemplified in Williams v. Allscup, 10 C. B. (N. S.) 417, as of a class adding to the value of the chattel, and the consent of the owner was deemed implied from the husband’s possession of the chattel. Sullivan v. Clifton involved ithe priority of liens of a chattel mortgage and a subsequent statutory lien of a stable keeper for keeping a horse. The lien of the mortgage was held superior. It is there pointed out as a general rule that while a com
In the present case defendant specifically asserts his lien, and is about to sell, under tire statute of 1915 above referred to. Accordingly, it will not be here, considered whether Iris claim could be sustained as an artificer’s common law lien superior to- the lien of the mortgage.
Where, as here, the liens asserted are both statutory liens, all decisions appear to be uniform to- the effect -that the primary inquiry is one of legislative intent. Nor can there be any doubt touching the power of the legislature to- create a lien of the nature here asserted by defendant superior to the lien of a prior chattel mortgage as against a - mortgage made after the passage of ithe act. Manjr authorities to that effect are to be found in the note' above referred to; and the Crucible Steel Co. Case above cited is specifically to that effect.
The act of 1915 above cited does not specifically declare that the lien therein authorized shall be a lien superior in rank to the lien of. a prior chattel mortgage. But it appears to me to be impossible to give any other import to the provisions of that act. The lien is specificalty- given for
Defendant also holds by assignment a lien against the same automobile which, lien arose in precisely the same manner: as the lien hereinabove considered. I can see no reason why, under the liberal provisions of our law touching assignable claims, defendant may not be privileged to enforce the two liens together by a sale in the manner contemplated by the act.
No suggestion has been made by complainant to the effect that the amounts claimed by defendant are not justly due or that the indebtedness claimed by defendant has not arisen for services performed pursuant to the provisions of the statute. If any doubts of that nature exist this court
I have given no1 consideration herein to the circumstance, which has been urged by defendant as of importance, that the automobile against •which the lien is claimed by defendant was, at the time the service was performed by defendant, out of the county in which the chattel mortgage of complainant was recorded.
An. order will be advised discharging the order to show cause.