193 A.D. 859 | N.Y. App. Div. | 1920
These are appeals from orders in two separate actions between the same parties involving the same subject-matter, one of which denied injunctive relief to the plaintiff in that action and the other granted an injunction pendente lite to the plaintiff who was the defendant in the other action.
In the latter action, Kevorkian, Inc., seeks to restrain Heyman from posting notices of a Hen claimed under section 45 of the Personal Property Law (as added by Laws of 1911, chap. 326), and in the other action Heyman seeks to enjoin Kevorkian from removing such notices which Heyman had posted on the premises of Kevorkian, Inc. Both appeals may be considered together.
The facts are comparatively simple. Heyman was by an
Paragraph IV of the agreement reads as follows: “ Kurt Heyman hereby agrees to lend the corporation the sum of Twenty-five thousand ($25,000) dollars on or before October 15th, 1919, said obligation to be evidenced by a promissory note duly executed by the officers of the corporation, said note is to run until January 10th, 1921, and is to bear interest at 6% per annum and is to be a first lien on the entire assets of the corporation.”
The note was duly made and delivered to Heyman on November 7, 1919.
Heyman remained in the employ of Kevorkian, Inc., until June 2, 1920. During the time of his employment there had been no posting of notices of Heyman’s lien, nor any reference made to such a procedure by either of the parties. On July 27, 1920, Heyman filed notice of his lien in the manner prescribed in section 45 of the Personal Property Law and went upon the premises of Kevorkian, Inc., and posted notices, in the nature of signs announcing his lien, without the consent of the Kevorkian Company and which notices the latter caused to be removed. Thereupon Heyman secured a temporary-injunction restraining the company from interfering with these posted notices or signs.
Heyman bases his right to a mandatory injunction upon the ground that he had a lien under section 45 of the Personal Property Law which entitled him to put up signs containing the notices therein described.
A reading of section 45 of the Personal Property Law clearly shows that appellant had no hen thereunder. Section 45 is limited to merchandise and is an extension of the Lien Law in favor of factors and others who may enter into agreements to make loans or advances on merchandise or the proceeds thereof, whether the merchandise to be covered by the hen is or is not in existence at the time of the creation of the hen. The agreement between Heyman and Kevorkian did not refer to the lien as made upon the security of merchandise, and it gives no indication that the parties intended that Heyman should have a hen under section 45 of the Personal
Heyman’s motion for injunction was properly denied and Kevorkian’s motion was properly granted. Each of the orders appealed from is affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
In each case: Order affirmed, with ten dollars costs and disbursements.
