Bateman v. Clark

Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The plaintiff on his direct case proved all the essential elements of an action for replevin and the evidence to establish that cause of action remained uneontradieted throughout the trial. The defendant sought to establish as an affirmative defense that he was entitled to retain possession of plaintiff’s automobile by virtue of a lien for the cost of repairs made by him under section 184 of the Lien Law. The evidence is insufficient to establish that the automobile was repaired at the request or with the consent of the owner as provided for in section 184 of the Lien Law (N. Y. Y. C. Co. S. Agency, Inc., v. Laurel Garage, Inc., 219 App. Div. 329, 332: Lloyd v. Kilpatrick, 71 Misc. 19; Auto Dealers Discount Corp. v. Budd, 242 App. Div. 37; Delany & Co. v. Duvoli, 278 N. Y. 328.) We are also of the opinion that the facts as proven do not estop plaintiff from denying that he requested or consented that the repairs be made. (Ballard v. Burgett, 40 N. Y. 314; General Motors Acceptance Corp. v. Baker, 161 Misc. 238, 244; Barnard v. Campbell, 55 N. Y. 456.) The court erred in granting defendant’s motion for a nonsuit. All concur. (The judgment dismisses the complaint in an action in replevin.) Present — Crosby, P. J., Cunningham, Taylor, Harris and MeCurn, JJ.