Opinion
January 11, 1924.
Charles Burston [ Louis J. Opal with him on the brief], for the appellant.
Bertram L. Fletcher, for the respondent.
It was conceded on the trial that the plaintiff was the owner of the two trucks, the subject of this action, and that on April 6, 1921, and before the date upon which they were advertised to be sold, without prejudice to its rights, tendered the defendant $1,650 in payment of all charges, and demanded delivery of the trucks, but defendant refused to deliver them unless the plaintiff paid the total sum due to it under its contract with the New England corporation.
The learned trial court has found that the plaintiff did not make or enter into any agreement with the defendant in regard to the building and mounting of bodies on the two trucks or to build eight other truck bodies, and that the bodies were not built and mounted on the two trucks and the remaining eight bodies were not built at the request or with the consent of the plaintiff, the owner of the two trucks. The precise question, therefore, presented for decision upon this appeal relates to (1) whether or not the defendant acquired a lien for services rendered and materials furnished upon the two trucks only, or (2) in addition for the services and materials furnished pursuant to its contract with the New England corporation for eight other bodies.
It is conceded that the trucks were delivered by the plaintiff to the defendant at the request of the New England corporation, and the latter's representative, Baldwin, testified that the chassis were sent to the defendant by the plaintiff, at the request of his firm, for the purpose of having the bodies mounted.
It may fairly be inferred, however, from the evidence that the plaintiff is not in the position of an owner of chattels who has some knowledge that a workman has performed services upon them and only passively acquiesces therein, but rather the plaintiff was an affirmative factor in procuring the improvement to be made. ( Rice v. Culver, 172 N.Y. 60.) We think that the defendant's services and materials were within the meaning of the statute (Lien Law, § 180) furnished with the consent of the owner, and the defendant acquired an artisan's lien for his services and materials furnished in connection with the two trucks.
But did this lien also extend to the services rendered and the materials furnished in connection with the construction of the eight other bodies under its contract with the New England corporation? Appellant contends it does inasmuch as the contract for the bodies and mounting was entire, and that as the work was performed under a single contract the lien attached to all things delivered to the defendant under the contract. ( Wiles Laundering Co. v. Hahlo, 105 N.Y. 234; Blumenberg Press v. Mutual Mercantile Agency, 177 id. 362.) The question thus resolves itself into whether or not the trucks were delivered to the defendant by the plaintiff under the terms of its contract with the New England corporation. The order for ten bodies was concededly given by the New England corporation to fill a contract it had with Jones Bros., of New Bedford, to whom the trucks were to be eventually delivered. The New England corporation requested the plaintiff to send the chassis to defendant to mount the bodies for the Jones order and they were sent to defendant for that purpose. They were delivered to the defendant under the terms of its contract with the New England corporation, and its lien extended to the services rendered and materials furnished and for all the work done under the contract. ( Conrow v. Little, 115 N.Y. 387.)
The authorities cited in support of respondent's contention that, even if the consent of the owner has been established as to the mounting of the bodies upon the two trucks, the defendant could not also subject them to a lien for work on other bodies for a third party, are clearly distinguishable from the case at bar ( Barrett Manufacturing Co. v. Van Ronk, 212 N.Y. 90, 96; Moulton v. Greene, 10 R.I. 330), in that in those cases a person other than the owner of the chattels sought to be impressed with a lien delivered them to the party who asserted the lien, while in the case at bar the owner, with knowledge that the defendant was to build and mount bodies on them under its contract with the New England corporation, itself delivered them to the defendant.
The judgment should be reversed upon the law and the facts, with costs, the complaint dismissed and judgment directed for the defendant on its counterclaim, with costs.
KELLY, P.J., MANNING and KAPPER, JJ., concur; KELBY, J., dissents, and votes to modify the judgment by allowing a lien on the two chassis for the work done on same by defendant.
Judgment reversed upon the law and the facts, with costs, the complaint dismissed and judgment directed for the defendant on its counterclaim, with costs.