
    SAMUEL SABSEVITZ, PLAINTIFF-RESPONDENT, v. GREENVILLE AUTO SALES COMPANY, DEFENDANT-APPELLANT.
    Argued October term, 1924
    Decided February 13, 1925.
    Replevin — Automobile Held for Payment for Repairs — Tender of Amount Claimed to be Due by Plaintiff — Alllegation of Additional Charges Disputed — Garage Keepers’ Act, as Amended, Permitted Owners to Obtain Possession Upon Giving Bond in Double Amount Claimed.
    Before Justices Tbbnchabd, Mintpex and Lloyd.
    Eor the defendant-appellant, Edward J. Eorton.
    
    
      For the plaintiff-respondent, Eugene B. Hayne.
    
   Peb Cluiam.

This was an action of replevin, brought in the Second District Court of Jersey City, to recover possession of plaintiff’s automobile. The automobile had been purchased from the defendant, and plaintiff’s evidence was that the radiator being defective the defendant promised to replace it, but neglected to do so until the radiator froze, because of the defects.

It is admitted that the plaintiff tendered to the defendant $31.75, conceded to be due for repairs other than repairs to the radiator, but the defendant demanded $87.60, the difference being the cost of replacing the radiator. The jury found for the plaintiff.

It is contended that the court erred in refusing a nonsuit, because it was admitted that at least $31.75 was due the defendant. If the creditor fraudulently claimed more than was due he lost his lien, but not if his claim was made in good faith. Even if the excessive claim was in good faith, it was still in the power of the debtor to discharge the lien by a payment or tender of the sum actually due, since the creditor could not keep' the lien alive by refusing to accept the amount due. Kiss v. Ambrose, 97 N. J. L. 442.

The object of the 1922 amendment to the Garage Keepers’ act (Pamply. L. 1922, ch. 231) was to permit owners of automobiles to obtain possesion of the same upon pajunent into court of the amount demanded (plus a sum as security for costs); or, at the option of the owner, upon providing a bond in double the amount claimed, instead of furnishing a bond in double the value of the automobile, as theretofore. The fact that the penalty of the bond by the 1922 amendment is more than double the amount claimed under the statutory requirement cannot be said to be prejudicial to the defendant.

The judgment will therefore be affirmed.  