Thourot v. Delahaye Import Co.

After the plaintiff had made the repairs upon the motor cabs, he voluntarily delivered the possession of said cabs to the Prince George Carriage Company, and the latter agreed! that such delivery of possession should not divest the plaintiff of his lien, and that such lien should continue in full force and effect until the entire sum due the plaintiff should be paid. Independent of statute, it is clear that the plaintiff has no lien. Smith v. O’Brien, 46 Misc. Rep. 325 , 94 N. Y. Supp. 673 . The plaintiff asserts his right to a lien under section 184 of the lien law (Consol. Laws, c. 33). Section 184 of, the lien law, conceded by both sides to be applicable, provides as follows:

“A person keeping a garage or a place for the storage, maintenance, keeping- or repair of motor vehicles, as defined by article 11 of the highway law, and-who in connection therewith stores, maintains, keeps or repairs any motor-vehicle or furnishes gasoline or other supplies therefor at the- request or with the consent of the owner, whether such owner be a conditional vendee or a mortgagor remaining in possession or otherwise, has a lien upon such motor-vehicle for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline or other supplies therefor, and may detain such motor vehicle at any time it may be lawfully in his possession until such sum is paid.”

Under the common law possession is essential in order to support a: lien upon personal property. McFarland v. Wheeler, 26 Wend. 467 ; Smith v. O’Brien, 46 Misc. Rep. 325 , 94 N. Y. Supp. 673 . Possession is also essential in order to support a lien under section 184 of the lien law. The language used in this section makes it clear that such was the intention of the Legislature. The section permits a garage keeper and those therein mentioned to “detain such motor vehicle at any time it may lawfully in his possession until such sum is paid.” There is nothing in this language suggestive of any intention to permit the assertion of a lien independent of possession. Section 184 of the-lien law contemplates that a lien may be asserted-by one of those mentioned only when the motor vehicle is “lawfully in his possession.” It is only under such circumstances that the lienor is in a position to “detain” it. It probably is true that under the statute, as under the common law, the possession upon which a lien is founded may be actual or constructive. While continued actual possession may not be necessary as between the immediate parties, we think continued actual possession is essential between the lienor and third parties situated as were-the parties to this action. McFarland v. Wheeler, supra.

The appellant relies on the case of Scott v. Delahunt, 65 N. Y. 128 , and similar cases; but these authorities aré in no way contrary to the views here expressed. In Scott v. Delahunt, supra, the court held that a shipwright, to whom a boat had been delivered by the owner, has. a lien thereon for necessary repairs while it remains in his possession,, which is superior to that of a mortgagee.

The agreement which the plaintiff made with the Prince George Carriage Company that the plaintiff’s lien should continue notwithstanding that the plaintiff surrendered possession cannot alter the situation in so far as the defendant is concerned. The object of the statute was.

The complaint was properly dismissed, and the judgment should be affirmed, with costs. All concur.