Smith v. Dinneen ( 1901 )

Parker, P. J.:

If the lien of the defendant for repairing the wheel was no more than seventy-five cents, he was not justified in detaining it until a larger sum was paid or tendered to him. If, however, his lien exceeded that sum, he had the right to so detain it, and this action could not be maintained. It is impossible to tell from the verdict of the .jury what their conclusion upon that question was. They may have concluded that the defendant had a lien for one dollar and fifty cents, but having in mind the fact that seventy-five cents had already been paid by the plaintiff into court for him, they intended that the plaintiff should pay seventy-five cents more as the balance of that lien ; or they may have thought that the whole of his lien was seventy-five cents, and that upon being paid that he should give up the wheel. The requirement that the plaintiff “ pay” to the defendant the sum of seventy-five cents would rather indicate that they had reached the former conclusion, inasmuch as the seventy-five cents then in court had already been paid, to him. Clearly, if such was their intention, the judgment entered by the justice is in direct opposition to the verdict. And even if they had reached the latter conclusion, the judgment as entered would hardly seem to accord with that idea. Such a verdict would seem to be to the effect that the defendant had a special property in the wheel to the extent of seventy-five cents, and the judgment, to properly protect his interest, should-have been in the form required by the latter paragraph of section 1730 of the Code of Civil Procedure.

But the difficulty is that we" cannot tell from the verdict what the jury did intend. Did they'conclude that the defendant had ever unlawfully detained the wheel l Who did they conclude had the present right to its possession ? In short, had the- plaintiff the right to maintain the action or had he not Í From the record before us it is impossible to tell; and, hence, I am forced to the conclusion that the judgment must be reversed. (See Roehm v. Blanchard, 9 N. Y. Supp. 396.)

All concurred, except Smith and Edwards, JJ., dissenting.-

Judgment of the County Court and of the Justice’s reversed, with costs in all courts.