Macumber v. Detroit Cadillac Motor Car Co.

173 A.D. 724, 159 N.Y.S. 890, 1916 N.Y. App. Div. LEXIS 6647

Opinion

Per Curiam:

Defendant reduced its claim of lien to $792. Plaintiff made no tender, but offered $550. The insistence on $792 was not a conversion. Nor did defendant lose its lien, because after-wards, on May 6, 1915, defendant’s verdict against Fogarty was $127 less than the reduced sum it had claimed.

Allen v. Corby (59 App. Div. 1), on which appellant relies, was an instance of detention on claims not the subject of lien. The liveryman there had a lien of eight dollars and fifty cents or fifty-eight dollars and fifty cents, but instead of standing on his lawful lien he refused to restore the property except on payment of two hundred and twenty-one dollars, the balance of a general account for stabling, telephones and miscellaneous items. He thus detained the property upon demands which could not be the basis of lien. The right to hold on a just lien may be lost by insisting also on payment of other charges which are not liens (Kindelberger v. Kunow, 122 App. Div. ), but a lienor’s right, based on services giving a lawful lien, may not fail if the jury’s verdict should fall short of the sum charged and demanded. Here there has been no tender. Plaintiff’s offer, inadequate in any view, did not discharge the lien. There being no conversion, the complaint, therefore, was rightly dismissed.

The judgment is, therefore, affirmed, with costs.

Present — Jenks, P. J., Carr, Stapleton, Mills and Putnam, JJ.

Judgment unanimously affirmed, with costs.