21 N.Y.S. 264 | Superior Court of Buffalo | 1892
The action is replevin and the facts are agreed upon. Plaintiff held a chattel mortgage upon a buggy, and other property previously owned by one Morgenstern, executed by him as collateral security for the payment, thirty days after date, of a certain promissory note, indorsed by plaintiff for Morgenstern and held by the Bank of Buffalo, and as continuing security for any renewals of the same, or for other indorsements of Morgenstern’s paper in an amount not to exceed in all the sum of $284. The mortgage was duly tiled, and subsequently renewed as required by law. The possession and use of the buggy, subject to the conditions of seizure and sale contained in the mortgage, remained in Morgenstern, and while so in use, he took the buggy to the factory of defendant and requested him to make certain repairs thereon, which defendant did, amounting in value to
Upon these facts, the court below rendered judgment in favor of the defendant and awarded the possession of the property to him. I do not understand, from the case agreed upon, or from the argument of counsel, it is denied, that at common law a lien existed in favor of the mechanic for repairs made of value to the property; contention against it would be futile. Morgan v. Congdon, 4 N. Y. 553; Wiles Laundering Co. v. Hahlo, 105 id. 240.
It is, however, earnestly insisted that such lien is subordinate to the lien of a chattel mortgage duly filed, and as applied to the circumstances of this case is inferior to plaintiff’s lien. This presents the cpiestion to be decided. While the mortgage provides that the mortgaged property is in a certain barn, and that the same is not to be removed therefrom without the written consent of plaintiff, yet, it appearing in the agreed statement of facts that Morgenstern was to have the possession and use of the buggy, the case must be disposed of upon the theory that such use was with plaintiff’s knowledge and consent i he thus clothed Morgenstern with authority and dominion over the property, coupled with an apparent ownership. It may also be assumed, from the nature of the repairs as shown by the bill, and the character of the property in ■constant use, that such repairs were necessary, useful for its preservation, and enhanced its value. If we are right in these inferences, we have a case where the mortgagee authorized a use of the property, clothed the mortgagor with apparent
It is there laid down as a rule that all mechanics have a lien for labor bestowed, so long as they retain possession of the article, and that where a mortgagee allows another to use the property, and continue in the apparent ownership, prosecuting his business, which necessitates the use of the article, and where such use was contemplated, that such relation raises the implication that the mortgagor may take all necessary steps to preserve the property, and render it lit for use, that under the circumstances necessary repairs are superior to the lien of the mortgage, as ’ the mortgagee has authorized them. It is true that in that case, the mortgagee knew of the repairs being ¡nade, and made no objection thereto, and that the mortgage Was then due, but in the discussion of the case, no mention is made of those facts as controlling the decision, but therein it is placed upon the ground that possession, use and apparent ownership were in the mortgagor, and he was prosecuting a business with it, and these facts were what raised the implication of right to preserve the property for purposes of use, as it was for the benefit of all concerned. I can find nothing in the case of Baynev. Batter son, partially reported in 22 Week. Dig. 109, and of which we have been furnished with a manuscript opinion in full, which conflicts with this view. In that case, there was a conditional sale of the property, the title remained in the vendor, he in no wise authorized the repairs, and there were no circumstances from which consent to their performance could be implied. Likewise the case of Broman v. Young, 35 Hun, 113, is distinguishable. In that case, the work was performed under contract with the mortgagor, the mortgagee having nothing to do about it; true, they knew of the repairs, but they were powerless to prevent them, or consent to them, as the property was not under their control, and at the time they had no right of seizure, and could not by any act of theirs take possession. In the present case, by the express provision of the mortgage, plaintiff was authorized to
There is no doubt of the correctness of counsel for the plaintiff, as to the rights obtained by a chattel mortgage duly filed, but these authorities find no application here, for the reason, that under the facts of this case, plaintiff must be assumed to have impliedly authorized the repairs, and having authorized them he is not now to be heard as asserting a
Titus, Ch. J., and White, J., concur.
Judgment affirmed.