Opinion
June 27, 1934.
Appeal from Supreme Court of Monroe County.
Nicholas J. Weldgen, for the appellants.
Ralph H. Culley, for the respondent.
Present — SEARS, P.J., TAYLOR, THOMPSON, CROSBY and LEWIS, JJ.
The defendant sheriff stored the automobile without legal authority from the owner. It follows Erdle Garage, Inc., could have no lien for storage charges. (Lien Law, § 184; Rapp v. Mabbett Motor Car Co., Inc., 201 App. Div. 283; N.Y. Yellow Cab Co. Sales Agency, Inc., v. Laurel Garage, Inc., 219 id. 329.) Having volunteered payment of storage charges incurred by the defendant sheriff, the plaintiff cannot recover therefor ( Kiendl v. Cochrane, 153 App. Div. 802, 803); nor can it invoke the right of subrogation. ( Koehler v. Hughes, 148 N.Y. 507, 511; Gerseta Corporation v. Equitable Trust Co., 241 id. 418, 425.)
All concur, except SEARS, P.J., and CROSBY, J., who dissent and vote for reversal on the law and dismissal of the complaint on the ground that the levy was superior to the conditional sales contract inasmuch as the conditional sales contract was not filed in the office of the clerk of the town in this State where the judgment debtor resided at the time of the making of the conditional sales contract.
Judgment modified by striking out the provision for twenty-six dollars damages, and as modified affirmed, without costs. Conclusion of law numbered 3 disapproved and reversed.