94 N.Y.S. 702 | N.Y. App. Div. | 1905
Lead Opinion
The facts upon which this question is submitted are as follows: The plaintiff, a domestic corporation, engaged, in the manufacture and sale'of pianos, on March 13, 1899, delivered to one Adelaide V. Carlisle^ at the defendant’s hotel, a certain piano belonging to the plaintiff, under a conditional contract of sale, by the terms of which the title remained in the plaintiff until payment in full of $250, the agreed price therefor, in monthly payments of $10 each. Said contract provided 'that in case of failure of said Adelaide V..Carlisle to make any payment when due, it should at once terminate and the plaintiff become entitled to the immediate possession’ of the piano; that on and prior to August 23, 1898, the defendant was the lessee and proprietor of a hotel for public entertainment known as “ The Gerard,” located on West Forty-fourth street in the city of Mew York, and on that day the said Adelaide Y. Carlisle became a guest at said hotel and so remained until March 15, 1899, during such period receiving.food and lodging as a guest without any express agreement as to the period of entertainment or amount to be paid’ therefor; that on March 15, 1899, said Adelaide Y. Carlisle owed to said defendant for accommodation, board, lodging and extras furnished at her request from day to day, between August 23, 18.98, and March 15, 1899, inclusive, the sum of $161.21, a part of which had accrued on March 13,11 and 15, 1899 ; that on March 15, 1899, said Adelaide Y. Carlisle took a lease of certain apartments in said hotel for one year from that date, and thereupon occupied the same until June 25, 1899, taking her meals from time to time, without agreement as to price, in the restaurant which Was in the defendant’s hotel; that on June 25, 1899, said Adelaide Y. Car-lisle left said hotel, owing to the defendant the sum of $330.85, $161.21 having accrued on and prior to March 15,1899, as aforesaid, and the balance being due for rent under said lease and food and incidentals furnished in the defendant’s restaurant between March 15, 1899, and June 25,1899 ; that said Adelaide Y. Carlisle defaulted in her contract with the plaintiff by failing to pay the sum to be paid monthly on account of the purchase price-after June 13, 1899,. and thereupon notified the plaintiff that she surrendered' said instrument as provided by her contract with the 'plaintiff, and requested plaintiff to call' for and remove it; that on the 26th day of July,
Upon this submission the plaintiff is only entitled to judgment in the event that the defendant was not entitled to retain the piano at the time possession thereof was demanded, and if the defendant had a lien thereon for any amount she was entitled to retain it ilhtil that lien was discharged. Under the facts stated, the relation between the defendant and Adelaide Y. Carlisle was, prior to March' 15, 1899, that of innkeeper and guest. It is expressly admitted that the defendant was the lessee and proprietor of a hotel for public ! entertainment, and that the said Adelaide Y. Carlisle came to said-¡hotel as a guest, and so remained until March 15* 1899, upon that '.day owing to the defendant for accommodation, board, lodging and ¡extras furnished at her request from day to day the sum of $161.24, ¡a part of which sum had accrued on March thirteenth, fourteenth imd fifteenth. Such being the relation the defendant was entitled Kb common law to a lien upon the baggage and other property of the.guest and brought by her into the hotel, and, irrespective of the statute, the defendant was entitled to detain any property brought into her hotel by a guest as security for the payment of an amount due by the guest for lodging and supplies furnished. This lien Was-given to an innkeeper by the common law of England, which became a part of the law of this State upon its separation from England. By the adoption of the Constitution of this State (Const. [T.777] § 35; Const. [1894] art. 1, § 16) such parts of the com
It follows that the defendant is entitled to judgment, with costs.'
McLaughlin and Hatch, JJ., concurred ; O’Brien, P. J., arid Patterson, J.,: dissented. , • ■
Dissenting Opinion
The amount for which the lien was claimed included an under a-written lease, and the first criticism to be made of the defendant’s position is that, having asserted a lien for a greater amount than she was entitled to receive and having demanded that sum as a condition of returning the piano to its true owner, her lien, being thus vitiated in part, became vitiated in whole.
If we pass this over and take the view that she had a claim as an innkeeper for the board of Mrs. Carlisle for part of the and that this was not waived by demanding more, the question still remains whether she is entitled to retain the piano by virtue of her supposed lien. ■ It is conceded that Mrs. Carlisle did not own the piano and could make no transfer of it, nor give away rights under it or liens upon it so as to affect the plaintiff’s title. The defendant, therefore, must support her claim under section 71 of the Lien Law (as amd. by Laws of 1899, chap. 380). That section provides as follows: “ A keeper of a hotel, inn, boarding house or lodging house, except an emigrant lodging house, has alien upon, while in possession, and may detain the baggage and other property brought upon their
A boarding house is not, in common parlance or in legal meaning, every private house where one or more boarders are kept only and upon special considerations. But it is a quasi public house, where boarders are generally and habitually kept, and which is held out and known as a place of entertainment of that kind, (Cady v. McDowell, 1 Lans. 486.) A boarding house is not an inn, the distinction being that a boarder is received into a house by a contract, whereas an innkeeper, in the absence of any or lawful excuse, is bound to receive a guest when he presents
Apart from the question as to whether the'Gerard was. an inn or boarding-house, entitled to the benefit of section 71 of the Lien Law, I think that if that law is to be construed so as to deprive the plaintiff,, who is the true owner, of its property, to that extent it is unconstitutional. The question as to whether or not a boarding house keeper has a lien upon or right to detain property, no title to which is in the’ boarder, was directly presented in the case of Barnett v. Walker (39 Misc. Rep. 323). That was an action to recover possession óf a ■sewing machine detained by defendant, a boarding house keeper, under a claim of lien thereon for the amount of an unpaid board bill incurred by one Barnes. The machine was leased to Barnes under an agreement or contract of conditional sale that title should remain in- one Fiske until full payment of the purchase price. Barnes defaulted, and Fiske became; entitled to the possession of the machine Under' the agreement. After such default, Barnes moved the machine to the premises of the defendant and became a boarder and, as such, incurred a liability to the defendant for board, and' the question for decision in the casé was whether the defendant had a lien- on the machine as against the true owner. It was held that the Lien Law (Laws of 1897, chap.-418, §.- 71, as amd..-by Laws of 1899, chap. 380) gives a boarding house keeper no lion upon property brought upon his premises by a boarder nor any right to detain it for board, where the legal rights to both the title and possession of the property were then in another; and this because the true owner cannot, under the Constitution, be divested of his property except by due process of law.' (See Const, art. 1, § 6.) The reasoning of this opinion seems to me to be sound, and the application of the principles there announced to the facts in this case leads logically to the view which I entertain, that a construction of section
I think, therefore, that the judgment should be for the plaintiff.
Patterson, J., concurred.
Judgment ordered for the defendant, with costs.
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