
    The Peter Barrett Manufacturing Company, Appellant, v. Fred Van Ronk, Defendant, Impleaded with Everett E. Wheeler, Respondent.
    Second Department,
    February 16, 1912.
    Lien—enforcement of chattel mortgage — priority of lien of livery stable keeper in possession.
    In an action brought against the mortgagor and a livery stable keeper m possession to enforce "a chattel mortgage lien on a truck it appeared that the mortgagor delivered several horses and trucks to the livery stable keeper under an agreement whereby he was to pay a certain sum per month for board and storage. Subsequently the mortgagor left the truck in question with the livery stable keeper without any express agreement for its storage. Prior to the commencement of this action the mortgagor took away all but two horses and the truck in question.
    
      Held, that the livery stable keeper was not entitled to retain possession of the truck, on which the plaintiff held a chattel mortgage, for the payment of the board of the horses and storage of other trucks, except for the reasonable charge of storage for the same, as such truck was not included in his agreement for storage;
    That he would undoubtedly have a hen upon the entire number of horses ■ and trucks which were delivered to him under the agreement to such an extent that he might hold all or any of them until the payment of all charges.
    
      It seems, that if the truck in question had been a part of the group of chattels originally delivered to the livery stable keeper, and he had, acting in good faith, retained possession of the truck for his debt, he might be entitled to hold it.
    Appeal by the plaintiff, The Peter Barrett Manufacturing Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant Wheeler, rendered on the 2d day of May, 1911.
    
      Cyrus V. Washburn [George W. Sickels with him on the brief], for the appellant.
    
      Robert H. Wilson, for the respondent.
   Woodward, J.:

This action was brought to enforce a purchase-money chattel mortgage hen against defendant Van Bonk, mortgagor, and the defendant Wheeler, a livery stable keeper in possession. Plaintiff sold a single market truck to the defendant Van Bonk for the sum of $300. The delivery was made on the 6th day of August, 1909, and on that day the defendant Van Bonk executed a purchase-money chattel mortgage, which was duly filed on that day and was duly renewed on the 28th day of July, 1910. On the 1st day of August, 1909, the defendant Van Bonk brought seven horses and harness and four trucks to the defendant Wheeler for board and storage. The rate of board was agreed upon at $25 per month for each horse, no separate charge being made for the trucks and harness. Prior to the commencement of this action the defendant Van Bonk took away all but two of the horses, harness and one truck, the defendant Wheeler surrendering the same. The truck which was left was the one on which defendant Van Bonk had given the chattel mortgage to the plaintiff. On the 1st of December, 1910, the purchase money being unpaid, demand was made for the truck. The truck being in the possession of the defendant Wheeler, a livery stable keeper, the plaintiff, on the 10th day of December, 1910, offered to pay to the defendant Wheeler all his reasonable and proper charges for the keeping and storing of the truck, but the defendant Wheeler refused to surrender the same, claiming a lien thereon for the entire bill contracted by the defendant Van Bonk for the board and storage of ,the horses and trucks. The only question of law in the case is whether, under the Lien Law, the defendant Wheeler was entitled to retain possession of the truck, on which the plaintiff held a chattel mortgage, for the payment of the debt of the defendant Van Bonk, who was the mortgagor in possession.

It does not clearly appear when the particular truck in question came into the possession of the defendant Wheeler, but it was not delivered to the defendant Van Bonk until the 6th day of August, 1909, at which time the chattel mortgage in question was given, and was duly filed upon that day. This being the case, the truck now under consideration could not have been one of the seven horses and harness and four trucks which were placed in the custody of the defendant Wheeler by the defendant Van Bonk, under an agreement that the defendant Van Bonk would pay to the defendant Wheeler twenty-five dollars per month for the board of each horse, no separate contract being made in reference to the trucks. The rights of the defendant Wheeler, it would seem to us, were determined by the contract of August 1, 1909, five days before the defendant Van Bonk became the owner of the particular truck in question. He would undoubtedly have a lien upon the entire number of horses" and trucks which were delivered to him at that time for the board of the seven horses. (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 183.) We are inclined to the opinion that this Hen would attach to the property thus delivered to such an extent that he might hold all or any of such property until all charges for board of the horses and for the storage of the trucks was paid, but the terms of the statute require, as a condition of any lien upon any wagon, truck, cart, carriage, vehicle or harness, of any kind or description, stored or kept,” that an express or implied agreement shall he made with the owners thereof, whether such owner he a mortgagor remaining in possession or otherwise, for the sum due him for the care, keeping, boarding or pasturing of the animal, or for the keeping or storing of any wagon, truck, cart, carriage, vehicle and harness, under the agreement,” etc. Here there was an express agreement that the defendant Wheeler was to be paid twenty-five dollars per month for each horse, and the lien undoubtedly attached to each horse, and to each harness or truck delivered to the defendant Wheeler on the first day of August. But the truck involved in this litigation was not among the trucks so delivered, for it had not at that time been delivered to the defendant Van Ronk. When on the 6th day of August, 1909, the plaintiff delivered the truck to Van Ronk, it was subject to a chattel mortgage, duly filed, and which gave notice to all of the world of the rights of the plaintiff in such truck. It does not appear that this truck was delivered to the defendant Wheeler with any express agreement as to the amount which should be paid for its storage, though there would probably be an implied agreement to pay the usual charges for such storage. But being delivered at a time subsequent to the contract by which the defendant Van Ronk had agreed to pay twenty-five dollars per month for the board of each one of the seven horses, and when Van Ronk had only a qualified ownership in the chattel, it was not in his power to deal with the truck in a manner to involve it in the indebtedness previously contracted for by him. He could not sell the truck and pay the money over to Wheeler in discharge of his own obligations; he could not give the truck to Wheeler in payment of his own debt, or in discharge of the obligation of the contract. How then could he, by merely delivering this truck for storage, give a lien upon it for the payment of the. board and storage of property previously placed in the possession of the defendant Wheeler, and to which the lien had already attached ? We think it is entirely clear that the Lien Law never contemplated such a result as this. If the truck had been a part of the group of chattels originally delivered to the defendant Wheeler, and he had, acting in good faith, held on to this particular truck for his debt, it might be that he would be entitled to hold it, but, under the circumstances here disclosed, we are clearly of the opinion that there could be no lien attaching to this particular truck, except for the reasonable charge of storage for the same.

The judgment appealed from should be reversed, and the plaintiff should have judgment directing the sale of the chattel and the disbursement of the fund in harmony with this opinion, with costs.

Jerks, P. J., Thomas, Oarr and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and judgment directed for plaintiff, with costs, in accordance with opinion.  