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Ferrante Equipment Co. v. Foley Machinery Co.

Decided: July 5, 1967.

FERRANTE EQUIPMENT COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
FOLEY MACHINERY CO., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.

Schettino

The issue in this case is which of two lien holders has priority in a bulldozer.

The machine involved is self-propelled by a diesel engine. It does not have rubber tires but operates on two treads attached to the machine. It is an "off-the-road" piece of equipment used for general excavation and land clearance.

Ultimately, this decision rests upon whether this machine is a "motor vehicle" within the contemplation of the Garage Keepers and Automobile Repairmen Lien Act, N.J.S. 2A:44-20 et seq.

On April 27, 1964 Richard Heckle purchased the bulldozer from plaintiff, Ferrante Equipment Company, pursuant to a conditional sales contract. In order to perfect its lien, plaintiff filed a financing statement in the office of the Secretary of State, pursuant to N.J.S. 12A:9-401. Heckle made monthly payments to plaintiff until May 1965, when he defaulted in his payments. On June 8, 1965 Heckle brought the bulldozer to defendant, Foley Machine Company (Foley), to have the machine repaired. The repairs were completed, but the bill

was not paid. On July 6, 1965 plaintiff demanded possession of the bulldozer, which was still in the possession of defendant, claiming that plaintiff had a lien on the bulldozer because Heckle had defaulted in his payments on the conditional sales contract. Defendant refused to give up possession of the bulldozer, claiming a lien on it in the amount of the value of the work and materials it provided.

Plaintiff instituted this action and obtained a writ of replevin ordering the sheriff to deliver the bulldozer to plaintiff. Thereafter, the sheriff took possession of the bulldozer and delivered it to plaintiff.

Defendant moved for a summary judgment and its motion was granted by the trial judge who held that the bulldozer was not a "motor vehicle" within the meaning of the Garage Keepers Lien Act,*fn1 N.J.S. 2A:44-20 et seq., but rather that defendant had an artisan's lien which is superior to the lien acquired by plaintiff.

We certified plaintiff's appeal on our motion prior to argument in the Appellate Division.

We affirm on the ground that defendant has a common-law artisan's lien superior to plaintiff's security interest.

Plaintiff contends that a bulldozer is a motor vehicle within the contemplation of the Garage Keepers Lien Act and that establishments that repair and service such motor vehicles are limited to assert a garageman's lien and may not assert an artisan's lien. As a garageman's lien is expressly, by statute, subordinate to a perfected ...


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