Anton H. Meyer, as Assignee for the Benefit of Creditors of the United States Restaurant and Realty Company, Respondent, v. George Carmer, Appellant, Impleaded with James H. Wells and P. Ballantine & Sons

Anton H. Meyer, as Assignee for the Benefit of Creditors of the United States Restaurant and Realty Company, Respondent, v. George Carmer, Appellant, Impleaded with James H. Wells and P. Ballantine & Sons. Lien —foreclosure —pledge — sale of chattel. '-Appeal by the defendant from a judgment, entered on the 5th day of July, 1911, foreclosing the lien of a pledge and directing the sale of the chattel. [MAJORITY — Dowling, J.:] Dowling, J.: The evidence herein amply justifies so much of the judgment appealed from as determines that plaintiff has a valid lien on the painting in question in the sum of $5,000, with interest from November 16, 1909, less the offset allowed defendant Carmer amounting to $650, for the alleged damage done to the painting while held under the lien. It also satisfactorily appears that defendant Carmer never made any valid tender of the amount due upon the lien, nor in fact of any amount whatever. But we are unable to find any warrant of law for the award to plaintiff of the sum paid out for insurance and watchmen. Under the original agreement in writing between the parties it was made the duty of the restaurant company to keep the painting insured for Carmer’s benefit in the sum of $50,000, the expense of Which was to be borne by the company. While the attorney for the assignee claims to have notified the attorney for Carmer that if the painting was held any longer the insurance and care thereof would be charged against Carmer, there is no proof that the latter ever agreed thereto, nor was he legally chargeable with such expense. The legal duty, by contract, was upon the company to keep the painting insured, and the only subsequent agreement of Carmer was that the amount of the insurance should be reduced to $35,000. The judgment appealed from will, therefore, be modified by striking out the sum of $546.88, with interest thereon from June 18, 1910, and the further sum of $96, and as so modified it is affirmed, without costs. Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred. Judgment modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.