Opinion
March 2, 1928.
Appeal from Supreme Court of New York County.
Samuel H. Hofstadter of counsel [ H.H. Nordlinger and Harold Riegelman with him on the brief; Nordlinger Riegelman, attorneys], for the appellant.
Frank Aranow of counsel [ Sumner L. Samuels with him on the brief; Kaplan, Kosman Streusand, attorneys], for the respondent.
The plaintiff replevied taxicabs which it had sold to various defendants herein, and on which it had taken chattel mortgages. Defaults under these mortgages had occurred. The defendant garage company asserted a lien against the cabs pursuant to the provisions of section 184 Lien of the Lien Law. A new trial must be ordered for reasons presently to be noted.
Since amd. by Laws of 1926, chap. 373. — [REP.
Default having been made in payments called for by the chattel mortgages, the plaintiff was at the time of the commencement of the action the general owner of the mortgaged articles. ( Harrison v. Hall, 239 N.Y. 51.) The respondent garage company's claim being in the nature of a garage keeper's lien, it had a special property in the articles covered by the various chattel mortgages, the subject of the replevy.
The verdict below was improper in that it failed to fix the value of the various chattels at the time of the trial as provided for in section 1120 of the Civil Practice Act, and likewise because it failed to give any reason why such value was not so fixed as provided for in section 1121 of the Civil Practice Act. These and the subsequent sections (Civ. Prac. Act, §§ 1120-1124) are in pari materia. They must, therefore, be construed together, so as to reach a consistent and harmonious result. ( Beebe v. Estabrook, 79 N.Y. 246, 253; Van Cleaf v. Burns, 118 id. 549, 555.)
The value of the replevied chattels referred to in these sections means the value at the date of the trial, and not at any other time. ( New York Guaranty Indemnity Co. v. Flynn, 55 N.Y. 653; Allen v. Fox, 51 id. 562, 565; Gilroy v. Everson-Hickok Co., 103 App. Div. 574.) Value at the time of the seizure will not suffice, especially in a case such as this, where the seizure took place in May, 1923, and trial was held December 6, 1926. The chattels herein were taxicabs and we must take judicial notice that in this three and a half year period their value must, of necessity, have decreased. We may not assume that, since no change has been shown in their condition from such time, their value remained unchanged from the date of the levy. ( Gilroy v. Everson-Hickok Co., supra.) The fixing of the value as of the time of the trial might be pertinent in an action brought hereafter on the bond given for the order of replevy.
We do not think that the garage company's rights herein were affected by a prior judgment in its favor for the foreclosure of its liens in the Municipal Court.
It follows that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
DOWLING, P.J., FINCH, McAVOY and MARTIN, JJ., concur.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.