This case involves a challenge under the due process clause of the Fourteenth Amendment to Sections 184, 201, 202 and 204 of the New York Lien Law, McKinney’s Consol. Laws, c. 33.
Those sections provide:
§ 184. Lien of bailee of motor vehi-. cles, motor cycles, motor boats, or aircraft A person keeping a garage, . for the storage, maintenance, keeping or repair of motor vehicles or of motor cycles as defined by the vehicle and traffic law, . . . and who in connection therewith stores, maintains, keeps or repairs any motor vehicle ... at the request or with the consent of the owner, . has a lien upon such motor vehicle . . . for the sum due for such storing, maintaining, keeping, or repairing of such motor vehicle . and may detain such motor vehicle ... at any time it may be lawfully in his possession until such sum is paid . § 201. Notice of sale Before such sale is held the lienor shall serve a notice upon the owner with due diligence within such county, if such owner can be found when such lien arose . . . Such notice shall contain a statement of the following facts:
1. The nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due;
2. A brief description of the personal property against which the lien exists;
3. The estimated value of such property;
4. The amount of such lien, at the date of the notice.
It shall also require such owner or person to pay the amount of such lien, on or before a day mentioned therein, not less than ten days from the service thereof, and shall state the time when and place where such property will be sold, if such amount is not paid. If the-agreement on which the lien is based provides for the continuous care of property, the lienor is also entitled to receive all sums which may accrue under the agreement, subsequent to the notice and prior to payment or a sale of the property; and the notice shall contain a statement that such additional sum is demanded. Such notice shall be verified by the lienor to the effect that the lien upon such property is valid, that the debt upon which such lien is founded is due and has not been paid, and that the facts stated in such notice are true to the best of his knowledge and belief. § 202. Sale to be advertised
Each sale of personal property to satisfy a lien thereon shall be at public auction to the highest bidder, and shall be held in the city or town where the lien was acquired. After the time for the payment of the amount of the lien specified in the notice required to be served by the preceding section, notice of such sale shall be published once a week, for two consecutive weeks, in a newspaper published in the town or city where such sale is to be held, and such sale shall be held not less than fifteen days from the first publication; if there be no newspaper published in such town, such notice shall be posted at least ten days before such sale in not less than six conspicuous places therein. Such notice shall describe the property to be sold and shall state the name of the person for whose account the same is then held and the time and place of such sale
§ 204. Disposition of proceeds
Of the proceeds of such sale, the lienor shall retain an amount sufficient to satisfy his lien, and the expenses of advertisement and sale. The balance of such proceeds, if any, shall be held by the lienor subject to the demand of the owner, or his as-*381signee or legal representative, and a notice that such "balance is so held shall be served personally or by mail upon the owner of the property sold.
Plaintiff was the owner of a Volkswagen automobile. He filed against three defendants — a corporation operating a garage and repair shop, its president, and a New York licensed auctioneer — a complaint seeking a declaratory judgment against the statute, an injunction against defendants, and damages from them.
The District Court dismissed the complaint for failure to state a cause of action, on the ground that the challenged statute as allegedly here applied was not unconstitutional. The following are the allegations of the complaint, which, in effect, has been held to be demurrable.
February 10, 1972 plaintiff’s car suffered damage in a collision. The following day plaintiff asked the corporate defendant’s employee, whose first name is Marcel, to tow the car to its garage and to estimate the cost of repair, but not to repair until plaintiff’s insurance company had estimated the damage and until the corporate defendant had made contact with plaintiff.
February 24 Marcel asked plaintiff if the corporation should repair. Plaintiff replied negatively because the insurer had not yet appraised.
Later plaintiff secured from the garage corporation an estimate (dated February 18) that repairs would cost $1545.58.
In March, Marcel telephoned plaintiff that his car had been repaired, and asked if he wanted to pick it up. Plaintiff replied that he had not authorized repairs.
Subsequently, representatives of plaintiff’s insurer reported to plaintiff that the fair cost of repairs was $750 and that the garage had erroneously charged for parts which were neither damaged nor replaced.
April 7 defendant president of the garage company wrote, and April 13 plaintiff received, a letter to plaintiff that $950 was due the company for repair and $235 for storage, and that if plaintiff did not pay his bill and pick up the car, defendant company would sell the car pursuant to the statutory procedure with respect to foreclosing a garage-man’s lien.
April 13 plaintiff wrote to defendant company for an itemization.
April 17 defendant company wrote plaintiff that unless he paid his alleged indebtedness of $1311.50 by April 28, his car would be sold on May 19 at public auction under the direction of defendant auctioneer, pursuant to sections 201-204 of the New York Lien Law. The letter attached a partial itemization, including $950 for repairs. Presumably, the balance of the $1311.50 was for storage.
At plaintiff’s solicitation, an Assistant Attorney General of New York, and The Legal Aid Society then futilely sought to mediate the dispute.
May 12 plaintiff filed in the District Court a complaint pleading substantially, if unnecessarily verbosely, the aforesaid allegations. Relying on the court’s jurisdiction under 28 U.S.C. § 1343(3), he sought threefold relief: a declaratory judgment that, as here applied, Sections 184, 200-202, and 204 of the New York Lien Law violated the due process clause of the Fourteenth Amendment, a permanent injunction against the enforcement of those statutory provisions, and compensatory and punitive damages. He prayed for a three-judge district court, pursuant to 28 U.S.C. §§ 2281, 2284.
The Attorney General of New York and the Auto Body Craftsmen’s Guild petitioned the District Court to intervene as defendants. The Court granted a temporary injunction effective only until it determined the case, allowed the petition for intervention, denied plaintiff’s request for a three-judge court on the ground that the complaint did not name a state officer as defendant, and ultimately dismissed the complaint because the court regarded the Constitu*382tion as not requiring notice and opportunity to be heard on the amount claimed as a debt as a condition preliminary to sale under the statutory procedure.
Plaintiff moved this Court for an order staying the defendants’ sale of his car pending appellate hearing. Circuit Judge Kaufman denied the stay.
We are informed that, following Circuit Judge Kaufman’s denial of a stay, the auctioneer actually sold the car.
We now come to the questions of law presented by the District Court’s dismissal of the complaint.
Clearly the District Judge correctly determined that a three-judge court was not appropriate in this case, because, as he noted, none of the defendants is a state officer. There is no reason for us to say more than has been well said already by Judge Costantino on this point.
We next consider whether plaintiff has standing to attack those provisions of Section 184 of the New York Lien Law which allow a garageman to detain until he is paid his storage and his repair charges as well. Plaintiff admits that he told the garageman to pick up his car. Hence he voluntarily incurred at least some storage charges. Indeed, his car became subject to reasonable storage charges and to any common law lien, as well as to a statutory lien for those amounts. More important for present purposes, plaintiff, up to the time he filed his complaint, never asked to have the car back, nor tendered the amount of reasonable storage charges. Accordingly, he is in no position to challenge the statutory lien, even if it were true, which we do not suggest is the case, that the garageman was demanding excessive storage, as well as repair charges. Plaintiff’s challenge to the detention provisions of the New York Lien Law is, therefore, moot. Consequently, we do not rule upon the constitutionality of Section 184 of the New York Lien Law.
The situation is different with respect to plaintiff’s challenge to the sale provisions of tfee New York Lien Law. This has several aspects. The garageman gave notice of a forthcoming sale; so plaintiff was not injured by the notice aspect of the statute as here applied. Consequently, we do not rule upon Section 202 of the New York Lien Law.
However, perhaps what plaintiff means is that he was not given notice of a hearing in court before the sale. This is just another way of claiming that the statute does not require, what it is contended that the due process clause commands, that before effectuating a sale to foreclose a garageman’s lien a garage-man must afford in a judicial proceeding an opportunity to a car owner to have a judicial determination of the amount allegedly owed, at least when, as here, the owner disputes the amount. This is the nub of the present case because it is a non-moot challenge to Section 204 of the New York Lien Law. The fact that the sale has already occurred obviously does not make moot the prayers for a declaratory judgment and for damages.
We are of the view that, upon a full finding of the facts, which has not yet occurred because the complaint was dismissed for failure to state a cause of action, it may appear that the garage company and the plaintiff were in dispute as to the former’s charges for storage and repair, that in this posture, without taking the initiative to afford plaintiff opportunity for judicial ascertainment of the asserted debt, the garage defendant authorized the auctioneer, pursuant to New York Lien Law § 204, to sell plaintiff’s car, that the auctioneer sold the car, and that the auctioneer then turned over to the garage company the whole proceeds in partial satisfaction of the amount the garage company had claimed was owing to it for storage and repair charges. If those should be the facts found, then we would conclude that plaintiff has, under the doctrines enunciated in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed. 2d 556 (1972), Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and Sniadach v. Family Finance *383Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L. Ed.2d 349 (1969), a tenable contention that Section 204 of the New York Lien Law as applied here was repugnant to the due process clause of the Fourteenth Amendment and that he is entitled to a declaratory judgment and perhaps to compensatory and possibly punitive damages. We have not overlooked what was said below about the state procedures, such as replevin, which were open to plaintiff to have forestalled the sale. But we are persuaded that, even if those remedies would have been effective, they do not validate Section 204 of the New York Lien Law so as to give defendants the right to sell plaintiff’s property without either judicial ascertainment of the amount owed by plaintiff to the garage company or plaintiff’s admission or contractual stipulation as to the amount due. However, it is manifestly not proper for us to make final rulings on those points before the facts are found by the District Court after a plenary trial. All that we now do is to reverse the dismissal of the complaint and to remand the ease to the District Court with directions to try the case on its merits.
Reversed and remanded.