Majority
p. 472NEW YORK CIRCUIT—GENERAL TERM. De Bouverie v. Gillespie.
Headnote
Where a person has a lien on personal property, and its possession is demanded by the owner, if the creditor having such possession refuses to deliver, by denying property in the demandant, the lien is waived, and constitutes no defense to an action by the owner to recover the possession.Motiost to set aside the report of the referee.
The plaintiff, being indebted to the defendant, had left some goods in his possession as security. Upon a claim that the debt was paid, a demand was made for a return of the property, to which the defendant replied, by denying that he had any property of the plaintiff in his possession.
On the trial, it was proved that the goods did belong to the plaintiff, and had been left in defendant’s possession. It was then attempted to be set up, as a defense, that the defendant had a lien for the debt; but the referee overruled the defense, on the ground that, by setting up a claim inconsistent with the lien, the defendant had waived all right under it.
The extent of the defendant’s claim to the goods was a lien for the board, and the plaintiff was entitled to the repossession of the goods on discharging the lien.
If, when the goods were demanded in behalf of the plaintiff, the defendant had set up the lien, or had' demanded the authority by which the demand was made, that would not have constituted an unlawful' detention.
But, instead of that, the defendant denied that she had any of plaintiff’s property, thus distinctly setting up a claim to it as her own.
This, it is well settled in the law, was a waiver of the lien, and, therefore, the referees were right in their report.
Motion to set aside report denied, with costs.