
    Ludwig, Baumann & Company, Appellant, v. Robert C. Roth, Respondent.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Warehousing — Lien for charges — How acquired.
    Where certain household furniture, purchased from plaintiff who took back a chattel mortgage thereon and duly filed the same and under which the mortgagee was entitled to the possession of the property upon any default of the owner, was stored in defendant’s warehouse, the owner of the property is not a person included within section 113 (b) of the General Business Law giving ware-housemen a lien upon goods deposited with them, nor was the purchaser’s possession such that a pledge of the property, even if made in good faith, would have been valid, and the warehouseman lias no lien upon the property as against the mortgagee and is liable to it for a conversion of the property.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint.
    Shepard & Prentiss, for appellant.
    J. Wilson Bryant, for respondent.
   Seabury, J.

This is an action to recover damages for the alleged conversion of household furniture. The answer is a general denial and pleads that the defendant had a lien for forty-four dollars upon the goods. The plaintiff sold to one Adler certain household furniture which Adler stored with the defendant who was engaged in the storage warehouse business. Adler paid the storage charges up to October 6, 1907. The plaintiff demanded the goods of the defendant on November 7, 1908. The plaintiff originally sold the goods to Adler subject to a chattel mortgage which gave it the right to possession upon any default upon the part of Adler.

The defendant claims a lien upon the goods bj virtue of subdivision (b) of section 113 of the General Business Law (Laws of 1909, chap. 25). This statute provides that a warehouseman’s lien may be enforced “ against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted, if such person had been so intrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid.”

Adler who deposited the goods with the defendant was not such a person as is included within the provisions of the statute, giving to warehousemen a lien upon goods deposited with them. Adler’s possession of the goods was not such that a pledge of them by him would have 'been valid, even if the pledgee took the goods in good faith for value.

The goods were subject to a mortgage, and under the mortgage the title to the goods was in the plaintiff. Baumann v. Post, 12 N. Y. Supp. 213; Hazlett v. Hamilton Storage & Warehouse Co., 47 Misc. Rep. 660; Leadbetter v. Leadbetter, 125 N. Y. 290.

The filing of the mortgage was constructive notice to the defendant that the title to the goods was in the plaintiff. Baumann v. Post, supra.

Adler had no power to subject the plaintiff’s title to the goods to a prior lien by any contract which he made with the defendant, and the statute upon which the defendant relies gives him no lien as against the claims of the plaintiff.

It follows, therefore, that the judgment should he reversed and a new trial ordered, with costs to appellant to abide the event.

Gtjv and Butte, JJ., concur.

Judgment reversed and new trial ordered.  