
    Charles Milgrim, Respondent, v. Charles Coon, Doing Business as Drenco Machine Company, William Boylan and Drenco Machine Company, Inc., Appellants.
    (Supreme Court, Appellate Term, First Department,
    December, 1915.)
    Liens — replevin — master and servant — actions — evidence — automobiles. .
    After the commencement of an action in replevin to recover possession of plaintiff's.automobile alleged to have been wrongfully withheld by the individual defendants, a machine company which did certain work on the car at its garage before it was taken under the writ of replevin was allowed to intervene as a party defendant because of its claim that it held the car by virtue of a lien under section 180 of the Lien Law. Plaintiff claimed that said work was done without his request or consent and the company insisted that it was done under the direction of one of the individual defendants as the agent or servant of plaintiff, who plaintiff claimed was not his employee but an independent contractor engaged by him to make repairs to the car and that, therefore, any repairs made or materials furnished by the defendant company were for the said individual defendant and not for plaintiff. Held, that the evidence permitted of no other conclusion than that said individual defendant was the employee or agent of plaintiff and was acting within the scope of his employment when he placed the machine in the garage of the defendant company and allowed or directed it to make repairs thereon, and that said company had a lien upon the machine for the proper value of any labor or materials furnished by it, and that the individual defendant acquired no such lien and no cause of action was established against him. ■
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiff.
    
      Roger J. Heisler, for appellants.
    Morrison & Schiff (Jacob H. Schiff, of counsel), for respondent.
   Philbin, J.

The plaintiff brought this action in replevin to recover the possession of an automobile owned by it alleged to have been wrongfully withheld by the defendants Coon and Boylan. Subsequently to the bringing of the action the defendant Drenco Machine Company was allowed to intervene as a party defendant because of its claim that it, held possession of the said property by virtue of a lien under the Lien Law (Consol. Laws, chap. 33, art. VIII, § 180).

It was uncontradicted that the said Drenco Machine Company did do certain work on said automobile at its garage, before it was taken from its possession under the writ of replevin, but it is claimed by the plaintiff that such work was done without his request or consent. The said company insists that the work was done under the direction of the defendant Boylan, as the duly authorized agent or servant of the plaintiff.

The plaintiff claimed that said Boylan was not his employee, but was an independent contractor engaged by plaintiff to make repairs to the automobile, and that, therefore, any repairs made or materials furnished by the defendant company were for the' defendant Boylan and not the plaintiff. The trial court found in favor of the contention made by the plaintiff and held that the latter was entitled to the possession of the automobile free from any lien of said company, but subject to a lien of ninety-one dollars in favor of the defendant Boylan. Judgment was rendered accordingly. I think the proof permits of no other conclusion than that said Boylan was the employee or agent of the plaintiff at a 'fixed salary and was acting within the scope of his employment when he placed the machine in the garage of the defendant company and allowed or directed it to make repairs. The defendant company, therefore, had a lien upon said automobile for the proper value of any labor or materials furnished by it. The defendant Boylan acquired no such lien, and there was no cause of action established against him.

Guy and Page, JJ., concur.

Judgment reversed and complaint dismissed as to defendant Boylan, with fifteen dollars costs, and judgment reversed and new trial ordered, with fifteen dollars costs, to the defendant Drenco Machine Company, to abide the event.  