#### The Lake Street Elevated R. Co., Plaintiff, *v.*The Long Island R. Co., Defendant.

(Supreme Court, Queens Trial Term,

November, 1900.)

1. Common carrier — Lien, as against conditional vendor, for transportation charges.

Where locomotive engines are sold upon a condition precedent of payment before title shall vest, and they are delivered to the vendee to take to its railroad for use, the vendor cannot, upon the vendee’s default in payment, reclaim them from a carrier, by whom they were transported to their "destination, unless the vendor first pays the carrier’s lien for freight.

*2.*Same — Lien Law of 1897 does not defeat lien of carrier.

The Lien Law (L. 1897, ch. 418, § 111), relative to the penalty for not filing contracts for the conditional sale of railroad equipment, cannot be invoked to defeat the lien of a mere carrier, as the statute is expressly made applicable only to judgment creditors of, or purchasers from, the vendee for value and without notice, and a carrier is within neither class.

Action of replevin. The plaintiff made at Chicago, Illinois, a conditional sale of six locomotive railroad engines to the Brooklyn *&*Brighton Beach Railroad Company. The agreement of conditional sale was in the form of a lease, and provided that the title was to remain in the lessor until the purchase price was fully paid in certain specified installments called rent, whereupon title was to pass to the lessee. Meanwhile the vendee was by the said agreement given the right to use the said locomotives on its railroad in Kings county, N. Y., and in default of payment was to return the same to the vendor at Chicago “ in their present good order and condition, without deterioration in value from wear and tear.” They were delivered at Chicago by the vendor to the vendee, which shipped them as freight to their said destination. They passed over several railroads as such freight, the defendant being the final connecting carrier. The freight not being paid it delivered five and held the other for the freight. The vendee failed to make the payments required by the agreement of sale, and the plaintiff demanded the locomotive of the defendant.

*670David Murray for plaintiff.

William J. Kelly for defendant.

Gaynor, J.:

Section 111 of the Lien Law (L. 1897, ch. 4-18) provides that conditional contracts of sale of railroad equipment and rolling stock shall be invalid as to “ any subsequent judgment creditor of or purchaser from” the vendee for a valuable consideration and without notice, unless such contract be recorded as therein required, and unless “ each locomotive or car so sold ” has the name of the vendor marked on both sides thereof. The marking was done here, but the contract was not recorded until after the defendant had carried the locomotives and earned the freight. But this statute cannot be considered, as the defendant is not a judgment creditor or purchaser. It claims to hold possession for unpaid freight under its carrier’s lien. The case must therefore be decided on common law principles.

The vendor intended that the locomotives were to be transported to the place where they were to be used, the same as he intended that they were to be kept in repair, and delivered them for that purpose. If they had been repaired by a mechanic he would have had a hen on them which, it seems tome, would have been good against the vendor. I do not see why the defendant’s lien as carrier is not good on the same principle. After authorizing the vendee to ship the engines, and use them, and have them repaired when necessary, the vendor is estopped from disputing the carrier’s or the repairer’s lien. To say that the giving of such authority did not contemplate or extend to the giving of credit for freight or repairs, but only to payments in advance, would be contrary to the universal course of business. The law presumes according to the usual order of things.

The case of *Bassett*v. *Spofford*(45 N. Y. 387) which is cited to me as decisive of this case seems to me obviously inapplicable. There the chattels were stolen, and the owner authorized nothing.

Judgment for the defendant.