Hence, the work done by defendants cannot be attributed to the authority of a mortgagor remaining in possession. The authority must, as it has been seen, be one lawfully derived "from the owner" ( Auto Dealers Discount Corp. v. Budd, 242 App. Div. 37; Matthews v. Victor Hotel Co., 74 Misc. 426, affd. 150 App. Div. 928). And where the owner himself does not order the work, the authorization claimed to be derived from him is rather strictly construed ( New York Yellow Cab Co. Sales Agency v. Laurel Garage, supra). Appellants rely in part on Commercial Credit Corp. v. Moskowitz ( 142 Misc. 773, affd. 238 App. Div. 831). The record on appeal in that case indicates that decision rested on a stipulation of fact.
The lien of an innkeeper is superior to that of a chattel mortgagee, even though the mortgage was due when the chattel was brought to the hotel. 11 C.J. 656; Matthews v. Victor Hotel Co., 74 Misc. 426, 132 N.Y.S. 375; Weil Bros., Inc., v. Stern, 136 Misc. 265, 240 N.Y.S. 639. 4. A common carrier is likewise entitled to its lien although the goods be received from a wrongdoer.
There is some conflict upon this point among the earlier cases in this state and the decisions in the different states, but it must now be taken to be the settled law here that a chattel mortgage works a present transfer of the legal title to the property covered by it, defeasible by the payment of the sum it is given to secure. Barrett Mfg. Co. v. Van Ronk, 212 N.Y. 90; Kearny v. Post, 1 Sand. 105, 109; affd., 2 N.Y. 394; Hall v. Sampson, 35 id. 274, 277; Matthews v. Victor Hotel Co., 74 Misc. 426, 427; affd., 150 A.D. 928; Parshall v. Eggert, 54 N.Y. 18, 23; People v. Remington Sons, 59 Hun, 282, 287-289; affd., 126 N.Y. 654; Reich v. Cochran, 213 id. 421; Sheldon v. McFee, 216 id. 618, 623. These cases follow the common-law rule which was applicable alike to mortgages upon real and personal property, but in this state while the common-law rule now prevails as to chattel mortgages it does not hold good as to mortgages upon real property.
The relationship of the parties was then that of bailor and bailee. ( Matthews v. Victor Hotel Co., 74 Misc. 426.) Accordingly, the rule with respect to the right of action in the mortgagee or mortgagor for the damage sustained is the same as in the case of bailor and bailee, namely, either the general owner of the property or one having a special interest in it can maintain an action for an injury to it.