Opinion
January 26, 1948.
Present — Lewis, P.J., Carswell, Johnston, Sneed and Wenzel, JJ.
In a replevin action, judgment of the County Court of Westchester County modified on the law and the facts by striking out the amount of $168.57 in the two instances that it appears in the decretal paragraph and in each instance inserting in its place the amount of $112.88. As so modified, the judgment, insofar as appealed from, is unanimously affirmed, without costs. In our opinion the defendant's lien in the amount of $55.69 for services and supplies furnished to and for the mortgaged chattel was void, as to the chattel mortgagee, upon the defendant permitting the tractor out of its actual possession for thirty days after its lien accrued. (Lien Law, § 184; Sterling Motor Truck Co. v. Lavan, 260 N.Y. 43.) The motor, found by the trial court to have been owned by the mortgagor at the time of the execution of the mortgage, was included in the mortgaged chattels. ( Baker v. Central New York Freightways, Inc., 254 App. Div. 61.)