This action was brought to foreclose a. double lien for repairs upon and for storage of the defendant’s automobile. The plaintiff is the owner of a garage in the village of Saratoga Springs, and the defendant’s chauffeur directed plaintiff to take the machine to his garage and to.make necessary repairs thereupon. In pursuance of this instruction the machine was taken to the plaintiff’s garage, and a number of letters were written by the plaintiff to the defendant, asking what should be done in reference to the making of the repairs. These letters were ignored by the defendant, and after nine months’ delay the repairs were made upon the machine, to the amount of several hundred dollars, and this action was brought to enforce a lien upon the said machine for the value of the storage for the nine months during which it was held and for the value of the repairs. The trial judge found that the repairs were of a permanent nature, which the chauffeur had no authority to direct, and, therefore, that the plaintiff had no lien upon the machine for the making thereof. He found, however, that the storage of the machine was lawfully made in behalf of the defendant and that the value thereof was $250. Judgment was thereupon directed against the defendant for $250 and costs.
One of the contentions made by the appellant is that in this equity action to enforce a lien a money judgment was not authorized. The plaintiff’s reply to this contention is, that after the commencement of the action the machine was taken from the plaintiff’s possession by reason of a sale upon an artisan’s lien filed for the making of part of these repairs, while the machine was in the plaintiff’s possession.
The law unquestionably allows the molding of a judgment to conditions existing at the time of the judgment. When the action was commenced the plaintiff had possession of the machine, asserting his lien. If thereafter the machine was lawfully taken from him by virtue of a prior lien, undoubtedly this money judgment was proper. The difficulty, however, is that the evidence does not show that the machine was lawfully taken from him by virtue of a prior lien. The evidence upon that subject is contained in a few sentences, and reads as follows: “ I think the car now is in *754Mr. Maybee’s stable. I think it has been sold to satisfy a lien of Mr. Connor. I think it "brought $50. Mr. Connor is a machinist, who put some of these repairs on the machine. It appears that I did not pay him, and he served notice of lien and afterwards went on and sold the machine.” There is nothing in this evidence to show that the lien of this artisan was prior to the lien of the plaintiff for the storage of the machine, and nothing to show that the surrender of the machine after the sale upon the artisan’s lieii was not a voluntary surrender on the part of the plaintiff. The artisan never had such a possession as is necessary to give him a lien. He was apparently a servant of plaintiff. The machine was at all times in plaintiff’s possession. The voluntary surrender of possession by plaintiff, if it does destroy his lien, cannot deprive defendant of his right to a jury trial of the issue as to plaintiff’s right to claim for storage and the amount thereof. ■ We are of opinion, therefore, that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred, except Kellogg, J., dissenting in opinion, in which Chester, J., concurred.