Herschenhart v. Mehlman

Per Curiam:

Judgment unanimously reversed upon the law and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

When the plaintiff left his automobile in the garage then owned by Gottlieb & Silver, with a person unidentified, the presumption is that that person was the agent of Gottlieb & Silver and was authorized to accept such car for storage. (Nebenzahl v. Fargo, 15 Daly, 130 ; 4 N. Y. Supp. 554 ; Dunn v. Star Fire Ins. Co., 19 Wkly. Dig. 531 ; Norris v. Kohler, 41 N. Y. 42 ; Wood Mast. & Serv. 584.) It appears that plaintiff obtained from that person a receipt which shows the plaintiff’s address to be 380 Hooper street. When the automobile was sold for the lien, notice was required to be given in accordance with section 201 of the Lien Law. Notice was given to a concern in Philadelphia and not to the plaintiff. This was not a compliance with section 201, since, as appears by the receipt, the plaintiff had given his name and address when he left the car at the garage. When Gottlieb & Silver disposed of the garage and delivered the car to a third person, they were guilty of conversion, for the vendees failed to give the notice required under section 201, based upon the knowledge which Gottlieb & Silver presumptively had and judgment should have gone against Gottlieb for the value of the car. When Mehlman and his partner took over the automobile on the purchase of the garage they took the automobile with the rights of Gottlieb & Silver and subject to their responsibilities. (Austin v. Dye, 46 N. Y. 500 .) When they proceeded to a sale of the automobile under the Lien Law they were charged with the knowledge of the facts which Gottlieb & Silver had and if they were not acquainted with the actual facts and proceeded in disregard thereof, they rendered themselves liable in conversion.

Present: Cropsey, Lazansky and MacCrate, JJ.