Auto Dealers Discount Corp. v. Budd

Appellate Division of the Supreme Court of New York

Auto Dealers Discount Corp. v. Budd

242 A.D. 37, 272 N.Y.S. 893, 1934 N.Y. App. Div. LEXIS 5990

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1934

StatusPublished

Cited by5 cases

This text of 242 A.D. 37 (Auto Dealers Discount Corp. v. Budd) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Auto Dealers Discount Corp. v. Budd, 242 A.D. 37, 272 N.Y.S. 893, 1934 N.Y. App. Div. LEXIS 5990 (N.Y. Ct. App. 1934).

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Opinion

Per Curiam.

The defendant sheriff stored the automobile without legal authority from the owner. It follows Erdle Garage, Inc., could have no hen for storage charges. (Lien Law, § 184; Rapp v. Mabbett Motor Car Co., Inc., 201 App. Div. 283; N. Y. Yellow Cab Co. Sales Agency, Inc., v. Laurel Garage, Inc., 219 id. 329.) Having volunteered payment of storage charges incurred by the defendant sheriff, the plaintiff cannot recover therefor (Kiendl v. [38]*38Cochrane, 153 App. Div. 802, 803); nor can it invoke the right of subrogation. (Koehler v. Hughes, 148 N. Y. 507, 511; Gerseta Corporation v. Equitable Trust Co., 241 id. 418, 425.)

Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

All concur, except Sears, P. J., and Crosby, J., who dissent and vote for reversal on the law and dismissal of the complaint on the ground that the levy was superior to the conditional sales contract inasmuch as the conditional sales contract was not filed in the office of the clerk of the town in this State where the judgment debtor resided at the time of the making of the conditional sales contract.

Judgment modified by striking out the provision for twenty-six dollars damages, and as modified affirmed, without costs. Conclusion of law numbered 3 disapproved and reversed.

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Per Curiam.

The defendant sheriff stored the automobile without legal authority from the owner. It follows Erdle Garage, Inc., could have no hen for storage charges. (Lien Law, § 184; Rapp v. Mabbett Motor Car Co., Inc., 201 App. Div. 283; N. Y. Yellow Cab Co. Sales Agency, Inc., v. Laurel Garage, Inc., 219 id. 329.) Having volunteered payment of storage charges incurred by the defendant sheriff, the plaintiff cannot recover therefor (Kiendl v. [38]*38Cochrane, 153 App. Div. 802, 803); nor can it invoke the right of subrogation. (Koehler v. Hughes, 148 N. Y. 507, 511; Gerseta Corporation v. Equitable Trust Co., 241 id. 418, 425.)

Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

All concur, except Sears, P. J., and Crosby, J., who dissent and vote for reversal on the law and dismissal of the complaint on the ground that the levy was superior to the conditional sales contract inasmuch as the conditional sales contract was not filed in the office of the clerk of the town in this State where the judgment debtor resided at the time of the making of the conditional sales contract.

Judgment modified by striking out the provision for twenty-six dollars damages, and as modified affirmed, without costs. Conclusion of law numbered 3 disapproved and reversed.

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Bluebook (online)

242 A.D. 37, 272 N.Y.S. 893, 1934 N.Y. App. Div. LEXIS 5990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-dealers-discount-corp-v-budd-nyappdiv-1934.

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