207 A.D. 670 | N.Y. App. Div. | 1924
It was conceded on the trial that the plaintiff was the owner of the two trucks, the subject of this action, and that on April 6, 1921, and before the date upon which they were advertised to be sold, without prejudice to its rights, tendered the defendant $1,650 in payment of all charges, and demanded delivery of the trucks, but defendant refused to deliver them unless the plaintiff paid the total sum due to it under its contract with the New England corporation.
The learned trial court has found that the plaintiff did not make or enter into any agreement with the defendant in regard to the building and mounting of bodies on the two trucks or to build eight other truck bodies, and that the bodies were not built and mounted
It is conceded that the trucks were delivered by the plaintiff to the defendant at the request of the New England corporation, and the latter’s representative, Baldwin, testified that the chassis were sent to the defendant by the plaintiff, at the'request'of .his firm, for the purpose of having the bodies mounted.
It may fairly be inferred, however, from the evidence that the plaintiff is not in the position of an owner of chattels who has some knowledge that a workman has performed services upon them and only-passively acquiesces therein, but rather-the "plaintiff was an affirmative factor in procuring the improvement to be made. (Rice v. Culver, 172 N. Y. 60.) We think that the defendant’s services and materials were within the meaning of the statute (Lien, Law, § 180) furnished with the consent of the owner, and the defendant acquired an artisan’s hen for his services, and materials furnished-in connection with the two trucks. ' '
But did this hen also extend to the services rendered and the materials furnished in connection with the construction of the eight other bodies under its contract with the New England corporation? "Appellant contends it does inasmuch as the contract for the bodies and mounting was entire, and that -as the work was performed .under a single,contract the lien attached to all things delivered to the defendant under the contract. (Wiles Laundering Co. v. Hahlo, 105 N. Y. 234; Blumenberg Press v. Mutual Mercantile Agency, 177 id. 362.) The question thus" resolved itself into’whether or not the tracks were dehvered to the defendant by the plaintiff under the terms of its contract with the New England corporation.The order for ten bodies was concededly given by the New England corporation to fill a contract it had with Jones Bros./ of New Bedford, to whom the trucks were to be eventually delivered. The New England corporation requested the plaintiff to send the chassis to defendant to’ mount the bodies for the Jones order and they were . sent to defendant for that purpose. They were delivered to the defendant under the terms of its contract with the New England corporation, and its lien extended, to the services rendered and materials: furnished and for all the work.done under the contract. (Conrow v. Little, 115 N. Y. 387.)
The judgment should be reversed upon the law and the facts, with costs, the complaint dismissed and judgment directed for the defendant on its counterclaim, with costs.
Kelly, P. J., Manning and Kapper, JJ., concur; Kelby, J., dissents, and votes to modify the judgment by allowing a lien on the two chassis for the work done on same by defendant.
Judgment reversed upon the law and the facts, with costs, the complaint dismissed and judgment directed for the defendant on its counterclaim, with costs.