Opinion
November, 1900.
David Murray for plaintiff.
William J. Kelly for defendant.
Section 111 of the Lien Law (L. 1897, ch. 418) 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 lien on them which, it seems to me, 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.