#### Paul Thourot, Plaintiff-Appellant, *v.*Delahaye Import Company, Defendant-Respondent.

(Supreme Court, Appellate Term,

November, 1910.)

Liens— Nature, establishment and termination — Lien of garage keeper — Lost hy surrendering possession.

The keeper of a garage who repairs motor vehicles loses his lien thereon under section 184 of the Lien Law, as against one holding a chattel mortgage, hy voluntarily delivering possession thereof to the owner, though upon the owner’s agreement that such delivery ■ shall not divest the lienor of his lien.

*352Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint.

Morris W. Hart, for appellant.

Putney, Twombly & Putney, for respondent.

Seabury, J.

The present action is brought to foreclose the plaintiff’s alleged lien upon two motor cabs. Plaintiff was engaged in the vocation of repairing motor vehicles. The Prince George Carriage Company was the owner of two motor cabs. The plaintiff performed services and furnished materials in and upon said motor cabs of the agreed and reasonable value of $546.60 of which a balance of $406.60 remains unpaid. The motor cabs were purchased by the Prince George Carriage Company from the defendant, subject to a mortgage given by the Prince George Carriage Company to the defendant to secure the payment of $4,941.50.

Under the terms of the mortgage the defendant was authorized to take possession of and sell said motor cabs, in the event of any default by the Prince George Carriage Company.

The Prince George Carriage Company defaulted in its payments and, on January 12, 1910, it was indebted to the defendant on account of the purchase price in the sum of $2,864.81. On this day the defendant instituted an action of replevin against the Prince George Carriage Company, and in that action the two motor cabs were seized by the sheriff while they were in the possession of the Prince George Carriage *Company.*Subsequently the motor cabs were sold at public auction under a judgment rendered in favor of the defendant against the Prince George Carriage Company.

After the plaintiff bad made the repairs upon the motor cabs, he voluntarily delivered the possession of said cabs to the Prince George Carriage Company, and the latter agreed that such delivery of possession should not divest the plaintiff of his lien ’and that such lien should continue in full force *353and effect until the entire sum due the plaintiff should he paid. Independent of statute, it is clear that the plaintiff has no lien. Smith v. O’Brien, 46 Misc. Rep. 325.

The plaintiff asserts his right to .a lien under section 184 of the Lien Law. Section 184 of the Lien Law, conceded by both sides to he applicable, provides as follows: “A person keeping .a garage or a place for the storage, maintenance, keeping or repair of motor vehicles, as defined by article eleven of the Highway Law, and who in connection therewith stores, maintains, keeps or repairs any motor vehicle or furnishes gasoline or other supplies therefor at the request or with the consent of the owner, whether such owner he a conditional vendee or a mortgagor remaining in possession or otherwise, has a lien upon such motor vehicle for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline or other supplies therefor, and may detain such motor vehicle at any time it may he lawfully in his possession until such sum is paid.”

Under the common law, possession is essential in order to support a lien upon personal property. McFarland v. Wheeler, 26 Wend. 467; Smith v. O’Brien, 46 Misc Rep. 325.

Bossession is also essential in order to support a lien under section 184 of the Lien Law. The language used in this section malees it clear that such was the intention of the Legislature. The section permits a garage keeper and those therein mentioned to “detain such motor vehicle'at any time it may he lawfully in his possession until such sum is paid.” There is nothing in this language suggestive of any intention to permit the assertion of a lien independent of possession. Section 184 of the Lien Law contemplates that a lien may he asserted by one of those mentioned only when the motor vehicle is “ lawfully in his possession.”

It is only under such circumstances that the lienor is in a position to “ detain ” it. It probably is true that, under the statute as under the common law, the possession upon which-a lien is founded may he actual or constructive. While continued actual possession may not he necessary as between the immediate parties, we think continued actual possession is *354essential between tbe lienor and third parties situated as were the parties to this action. McFarland v. Wheeler, *supra.*

The appellant relies on the case of Scott v. Delahunt, 65 N. Y. 128, and similar cases, but these authorities are in no way contrary to the views here expressed.

In Scott v. Delahunt, *supra,*the court held that a shipwright, to whom a boat had been delivered by the owner, has a lien thereon for necessary repairs, while it remains in his possession, which is superior to that of a mortgagee.

The agreement which the plaintiff made with the Prince George Carriage Company, that the plaintiff’s lien should continue notwithstanding that the plaintiff surrendered possession, cannot alter the situation in so far as the defendant is concerned. The object of the statute was to give garage owners and those therein specified a lien; but it was not intended, as between a lienor and third parties, to change the common-law rule to the necessity of possession in order to preserve the lien.

The complaint was properly dismissed; and the judgment should be .affirmed, with costs.

Page and Bíjur, JJ., concur.

Judgment affirmed.