Goyena v. Berdoulay

154 N.Y.S. 103 | N.Y. App. Term. | 1915

BIJUR, J.

This action was brought in replevin for the recovery of an automobile belonging to plaintiff. The defense was, in substance, that the defendant had, at plaintiff’s request, performed repair work on the automobile, and was entitled to hold the same by virtue of his lien; also that defendant had transferred the lien, together with the possession of the automobile, to certain third parties, who were not parties to the action.

[1] That the lien was so transferable seems to have been settled in Nash v. Mosher, 19 Wend. 431, and respondent cites no authority to the contrary. It is evident, therefore, that plaintiff could not recover, without showing that he had paid or tendered the amount secured by the lien.

[2] Apart from that f,act, however, the judgment is in the sum of $250, with appropriate costs, and there is not a scintilla of evidence in the record of the value of the chattel.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.