Scott Shoe Machinery Co. v. Broaker , 71 N.Y.S. 1023 ( 1901 )

O’Dwyer, J.

This is an action of replevin for the wrongful detention of certain books of account. The defendants admit having possession of the books and that the books are the property of the plaintiff. In order, therefore, to be able successfully to defend this action it is evident that defendants must allege facts showing that the books have not been wrongfully detained. Hnless the allegations contained in the fourth and fifth paragraphs of the answer set forth such facts, it is clear that they do not constitute a separate and distinct defense, and that the demurrer should have been sustained.

The facts alleged in the portion of the answer demurred to state that defendants were employed by plaintiff to examine and investigate the accounts contained in certain books at an agreed price of $300, that the examination has been made and that $150 of the agreed price has not been paid to defendants, for which sum they claim a lien on said books and property herein above-mentioned for the services performed by them as aforesaid.

The defense claimed is that they have a common-law lien on the books and that their detention of them is, therefore, legal and not wrongful. It follows that if, on an examination of the allegations, it appears that defendants have no lien on the books, then, their detention of them is wrongful, and the demurrer to this alleged defense should have been sustained. .

At common law liens were given to attorneys, warehousemen, wharfingers, and to other special classes of persons. There was no such thing as an accountant’s lien. And, except in the case of these favored classes, the only persons having a lien at common-law are bailees employed to change, alter, repair, or do work upon some article, and who, by their services, have added something to its value. In this latter class are the liens of tailors, carpenters, etc. This class appears to be the same as is provided for by section 10 of the New York Lien Law. The defendants certainly do not come within this class. They have done nothing to the books, but have merely made an examination of them. After their examination the books remained as they were before, nothing whatsoever having been added to their value. The object of the examination made by an accountant is the preparation of a report. The report may be something of value, or it may not, but the books themselves are not the least changed or improved by the investigation. In De Vinne v. Rianhard, 9 Daly, 406, Chief Justice Charles P. Daly said: “ The courts have recognized and allowed without restriction, the right of every bailee to a lien on the goods bailed to him, where any additional value has been conferred by him on the chattel, either directly by the exercise of personal labor and skill or indirectly by the intermediate nse of any instrument over which he has control; and that the right, when it does not exist from usage, or is not obtained by contract, depends upon whether any additional value has been conferred by the bailee on the chattel, may be illustrated by the decision in Jackson v. Cummins (5 Mees. & W., 342), that an agister, or one who takes charge of horses or cattle, has no lien for their keep, because he does not confer any additional value on the animal but merely takes charge of it and feeds it; and the decision in Scarfe v. Morgan (4 Mees. & W., 270), that one who receives a mare to be covered by a stallion has a lien, as the mare may be more valuable by proving in foal; in the first of which cases Baron Park declares the rule to be as follows: The general rule is, in the absence of any special agreement, that, whenever a party has expended labor and skill in the improvement of a chattel bailed to him, he has a lien upon it.” Applying these rules to the answer in question, it is to be noted that the defendants fail to allege either of the following facts, both of which are essential to their defense: 1. That they either made, altered or re-, paired the books. 2. That they added to their value or improved them.

The judgment and orders appealed from should be reversed, and the demurrer sustained, with costs, with leave to the defendants to amend upon the payment of costs.

Conlan and Hascall, JJ., concur.

Judgment and orders reversed, and demurrer sustained, with costs,-with leave to defendants to amend upon payment of costs.