Permanente Products Co. v. Bell Aircraft Corp.

Memorandum: We think, under the terms of the contract between Bell and Mills, Bell cannot sustain its right to an artisan’s lien (Wiles Laundering Co. v. Hahlo, 105 N. Y. 234; Morgan & Gray v. Congdon, 4 N. Y. 552; Pezenik v. Greenberg, 94 Misc. 192). While we cannot agree with the trial court’s decision as to the pledge agreement, still, on the record before us, we cannot make a new finding of fact on that question. (Civ. Prac. Act, §§ 445, 584.) We think that the evidence presents a question of fact for a jury to determine as to whether a pledge agreement was made at the conference of December 16, 1947. In the interest of justice, we determine that the judgment should be reversed and a new trial granted, and that the question of fact as to whether or not a pledge agreement was made, should be determined on a new trial. All concur, except Taylor, P.-J., who dissents and votes for affirmance. (The judgment appealed from is for Bell Aircraft Corporation, defendant in the first action and plaintiff in the second action, in consolidated lien foreclosure and replevin actions.) Present — Taylor, P. J., McCurn, Love, Kimball and Piper, JJ. [See 277 App. Div. 833.]