
    Blanche Lloyd, Plaintiff, v. David Kilpatrick et al., Defendants.
    (City Court of the City of New York, Trial Term,
    February, 1911.)
    Liens — Nature, establishment and termination — Liens on automobiles— Consent of owner.
    The keeper of a garage cannot acquire a lien upon an automobile for making repairs or furnishing supplies under section 184 of the Lien Law unless the repairs or supplies were made or furnished at the request or with the consent of the owner; and such consent is not to be inferred merely from the fact that the head of the owner’s repair department had on several occasions visited claimant’s garage while the machines were there, seen the work done on them and, in addition, furnished two parts for a portion of the machines. .
    The consent of persons who have hired an automobile from the owner is insufficient to give a garage keeper a lien under said section.
    Action to establish a lien upon automobiles for work, labor and services.
    Cohen Bros., for plaintiff.
    Colbyy & Goldbeck, for defendant Henry Ducasse & Company.
    
      Philip J. Dunn, for defendant Thomas J. Butler.
    Jerome Eisner, for defendants David Kilpatrick et al.
   Donnelly, J.

This is an action brought under section 184 of the Lien Law to impress a lien upon three certain automobiles for work, labor and services and the furnishing of materials by the plaintiff.

The section in question is as follows:

Section 184. Lien of bailee of motor vehicles. A person keeping a garage or place for the storage, maintenance, keeping or repair of motor vehicles, as defined by article eleven 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.”

It was conceded upon the trial that the defendant Henry Ducasse & Co., the owner of the automobiles in question, leased the said automobiles to the defendant Thomas J. Butler, who, in turn, sublet them to the defendant Kilpatrick. The latter, while using them under his sublease, placed the said automobiles in the plaintiff’s garage; and plaintiff claims a lien thereon for storage charges and the cost of certain repairs and supplies.

It appears from the evidence that up to about March 7, 1910, the money derived from the operation of the automobiles was paid over to the defendant Kilpatrick and that, from about March 8, 1910, to May 13, 1910, the automobiles were run by the plaintiff under an arrangement with the defendant Kilpatrick by which the plaintiff was to have full charge and control of said automobiles and of the chauffeurs of the same, and whereby she was to pay the expenses of operation and herself out of the proceeds turned in to her by said chauffeurs and return the surplus, if any, to the defendant Kilpatrick.

On May 13, 1910, the plaintiff sent the three automobiles out as usual with instructions to the chauffeurs to hack with the' same and to return to the garage at the end of the working day with the proceeds of said day’s business.

The defendants Kilpatrick and Butler, during this last mentioned day, while the automobiles were out hacking pursuant to the instructions of the plaintiff, took possession of said automobiles without plaintiff’s knowledge, whereupon plaintiff brought this action against Kilpatrick, Butler and Henry Ducasse & Co. to foreclose her alleged lien, and caused the sheriff of Hew York county to seize the automobiles under a writ of seizure.

After the automobiles had been taken from the plaintiff, two of said machines came into the possession of the defendant Henry Ducasse & Co., and the third into the possession of the Hew York Taxicab Company, not a party to this action.

The plaintiff claims that there was $425 due her for storage, repairs and maintenance of said automobiles on May 13, 1910. The defendants contend that the plaintiff’s bill has been paid in full.

Prior to 1908 the keeper of a garage where automobiles . were cleaned, repaired and kept in proper condition and stored had no lien, either at common law or as an artisan, under section 10 (now 180) of the Lien Law, for storage, repairs and maintenance of automobiles, because the owner reserved the right to use the automobile at his pleasure and thereby continuous possession was disturbed. Smith v. O’Brien, 46 Misc. Rep. 325.

Since 1908, the garage keeper has such lien for. the storage, maintenance, keeping and repairing of motor vehicles as section 184 of the Lien Law gives him.

There seems to be no case reported construing this section. The language of section 3 of the Lien Law, however, is almost identical with that of this section; and there are numerous eases reported construing section 3, where it was sought to impress a lien against real estate of the owner for work and materials ordered by persons other than said owner. Section 3 reeds: with the consent or at the request of the owner thereof, or his agent, contractor or subcontractor.”

Section 184 reads “ 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.”

In order to maintain this action successfully against the defendant Henry Ducasse & Co., the owner of the automobiles, the plaintiff must prove, by a preponderance of evidence, that she stored and repaired the automobiles and furnished supplies therefor at the request or with the consent of the said defendant. The only testimony on this point is that the said défendant had in their employ at the head of the repair department an employee named Boettcher and that he, on several occasions, visited the plaintiff’s garage while the automobiles were there, saw some work being done on the cars and, in addition, furnished new parts for a portion of the automobiles.

This testimony, in my opinion, is not sufficient proof of consent on the part of the defendant owner. Mere knowledge does not imply the consent mentioned in the statute. The'cases cited by plaintiff in support .of this contention, viz.: Cowen v. Paddock, 137 N. Y. 188, and Spruck v. McRoberts, 139 id. 193, do hot hold any such doctrine. On the contrary, they are, in my opinion, authorities against" rather than in favor of plaintiff’s position.

In Rice v. Culver, 172 N. Y. 60, Judge Cullen said: “ There is a marked distinction between the passive acquiescence of an owner in that he knows the improvements are being made, improvements which in many cases he has no right to prevent, and his actual and express consent or requirement that the improvement shall be made. It is the latter that constitutes the consent mentioned in the statute. To fall within that provision, the owner must either be an affirmative factor in procuring the improvement to be made or having possession and control of the premises assent to the improvement in the expectation that he will reap the benefit of it.”

In De Klyn v. Gould, 165 N. Y. 282, the language of the court is: “ The owner’s interest in his real estate is not liable in every case in which to his knowledge labor and materials are furnished for erections upon his real property, or alterations in the existing erections. * * *

“This case, as well as the others it cites, indicates that mere acquiescence in the erection or alteration, with knowledge, is not sufficient evidence of the consent which the statute requires. There must be something more. Consent is not a vacant or neutral attitude in respect of a question of such material interest to the property owner. It is affirmative in its nature.” See also Garber v. Spivak, 65 Misc. Rep. 37, and Seklir v. Krizer, 48 id. 25.

The evidence in this case, while it might possibly show knowledge on the part of the defendant Henry Ducasse & Co., fails to show some affirmative act respecting the particular improvement from which its knowledge and consent may be properly inferred.

As was said in the case of De Klyn v. Gould, supra, there are many cases in which the owner’s consent has been implied from the circumstances and his declarations and acts in respect to improvements (see National Wall Paper Co. v. Sire, 163 N. Y. 132), but there is no testimony in this case tending to show acts or declarations on -the part of the defendant owner which would bring it within the rule laid down in the case of the National Wall Paper Co. v. Sire.

I accordingly find that the charges for which plaintiff claims a lien were not incurred, either at the request or with the consent of the owner Henry Ducasse & Co., as required by section 184 of the Lien Law.

The plaintiff, however, contends that, in order to impress a lien upon the automobiles in question, it was unnecessary to show that the work was done at the request or with th^ consent of Henry Ducasse & Co. -She claims that the knowledge and consent of the defendants Butler and Kilpatrick was sufficient- to impress said automobiles with a lien, because the statute reads “ at the request or with the consent of the owner, whether such owner he a conditional vendee, or a mortgagor remaining in possession or otherwise ”

I do not believe there is any merit in this contention. In the first place the evidence, so far as Butler is concerned, is not sufficient under the authorities above cited to predicate a finding upon to the effect that the charges for which plaintiff claims a lien were incurred, either at the request or with the consent of said Butler; and, even if it were, it would make no difference, because he was only a lessee and not an owner.

Kilpatrick was merely a sublessee, and his knowledge or consent was not sufficient under the terms of the statute to impress a lien upon the automobiles.

Nothing is said in this statute about a lessee or a sub-lessee.

The. phrase “ dr otherwise ” as used in the statute, cannot be extended to mean a lessee or a sublessee because, under the doctrine of ejusdem generis, the words “ or otherwise ” can only embrace things of the same kind or class as those with which they are connected. A lessee or a sublessee is not ejusdem generis with an owner, a conditional vendee, or a mortgagor remaining in possession; and, therefore, their knowledge or consent cannot avail the plaintiff in this action. See Hickey v. Taaffe, 99 N. Y. 204; Wakefield v. Fargo, 90 id. 218.

I, therefore, direct a judgment in favor of the defendants and against the plaintiff, dismissing plaintiff’s complaint, with costs.

'Submit findings and judgment on three days’ notice.

Judgment for defendants.  