Bateman v. Clark

Appellate Division of the Supreme Court of New York

Bateman v. Clark

263 A.D. 789, 31 N.Y.S.2d 270, 1941 N.Y. App. Div. LEXIS 4938

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

DecidedNovember 7, 1941

StatusPublished

Cited by4 cases

This text of 263 A.D. 789 (Bateman v. Clark) 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.

Bluebook

Bateman v. Clark, 263 A.D. 789, 31 N.Y.S.2d 270, 1941 N.Y. App. Div. LEXIS 4938 (N.Y. Ct. App. 1941).

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Opinion

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 [790]*790plaintiff 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.

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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 [790]*790plaintiff 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.

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Bluebook (online)

263 A.D. 789, 31 N.Y.S.2d 270, 1941 N.Y. App. Div. LEXIS 4938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bateman-v-clark-nyappdiv-1941.

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