Macumber v. Detroit Cadillac Motor Car Co. — 173 A.D. 724

Majority

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Van D. Macumber, Appellant, v. Detroit Cadillac Motor Car Company, Respondent.

Second Department,

June 29, 1916.

Headnote

Lien — lien oí motor company for repairs to automobile — conversion -> loss of lien.

Where a motor car company reduces its claim of loss for repairs to an automobile, and the owner makes no tender of said amount, but offers a lesser amount, the insistence by the company on receiving the amount of its reduced claim of lien does not constitute a conversion. Nor does said company lose its lien because subsequently a verdict was rendered against the owner for an amount less than the reduced sum claimed.

Appeal by the plaintiff, Van D. Macumber, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of January, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

The action was brought to recover for the alleged conversion of an automobile.

Defendant’s answer denied the allegations of plaintiff’s ownership and of the alleged conversion. In defense it stated that the automobile had formerly belonged to one Fogarty, who had delivered it to defendant for repairs, which defendant had made; that defendant held the automobile under its lien for the value and amount of such repairs.

It appeared that defendant had rendered a bill for $992 for such repairs, which Fogarty disputed. Eventually Fogarty

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authorized one Quinlan to sell the automobile to any one who would contest and settle said bill at the proper amount. As such agent, Quinlan sold the automobile to plaintiff for eig’ht dollars, taking his promise to contest and settle defendant’s repair charges; and, thereupon, a bill of sale of the automobile was given to plaintiff.

After corresponding with defendant plaintiff had an interview with its president, in which he objected to the amount of the charges, and offered to pay $550, and demanded the automobile. The president offered to let the plaintiff take the car for $792, which he stated as the least sum defendant would accept. This action for conversion followed. It appeared on the trial that defendant had sued Fogarty on its bill of $992, and in that action had recovered a verdict for $665 on May 6, 1915.

The court dismissed the complaint and plaintiff appealed.

Adolph Feldblum [Max H. Newman with him on the brief], for the appellant.

Henry Amerman, for the respondent.

Defendant reduced its claim of lien to $792. Plaintiff made no tender, but offered $550. The insistence on $792 was not a conversion. Nor did defendant lose its lien, because after-wards, on May 6, 1915, defendant’s verdict against Fogarty was $127 less than the reduced sum it had claimed.

Alle n v. Corby ( 59 App. Div. 1 ), on which appellant relies, was an instance of detention on claims not the subject of lien. The liveryman there had a lien of eight dollars and fifty cents or fifty-eight dollars and fifty cents, but instead of standing on his lawful lien he refused to restore the property except on payment of two hundred and twenty-one dollars, the balance of a general account for stabling, telephones and miscellaneous items. He thus detained the property upon demands which could not be the basis of lien. The right to hold on a just lien may be lost by insisting also on payment of other charges which are not liens (Kindelberger v. Kunow, 122 App. Div.

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158 ), but a lienor’s right, based on services giving a lawful lien, may not fail if the jury’s verdict should fall short of the sum charged and demanded. Here there has been no tender. Plaintiff’s offer, inadequate in any view, did not discharge the lien. There being no conversion, the complaint, therefore, was rightly dismissed.

The judgment is, therefore, affirmed, with costs.

Present — Jenks, P. J., Carr, Stapleton, Mills and Putnam, JJ.

Judgment unanimously affirmed, with costs.

Cases cited

Allen v. Corby 59 App. Div. 1 N.Y. App. Div. 1901-03-08 p. 725