96 N.Y. 538 | NY | 1884
This action was brought in November, 1877, to recover the possession of a mare called "Modesty." The defendant, in his answer, denied plaintiff's title and alleged that he had a lien upon the mare for her keep and board under chapter 498 of the Laws of 1872.
The plaintiff claimed title to the mare by a gift from her husband. It is not denied in the brief submitted to us on behalf of the appellant that she could thus acquire the title. That a husband may make a valid gift of personal property *542
directly to his wife is thoroughly settled by authority. (Phillips v. Wooster,
Subsequently to the gift the mare was kept in the husband's stable, cared for by a hostler paid by him, and he paid for her feed, shoeing and training, as Mrs. Armitage had no estate or income. These facts were proper for the consideration of the *543 jury, but did not nullify or destroy the gift or conclusively show that one valid in law had not been made.
Nearly four years after the gift of the mare, she was, by consent of the plaintiff, delivered to the defendant by Mr. Armitage to be kept, trained and sold by him. He did not know that the plaintiff owned the mare, but supposed that she belonged to Mr. Armitage. He kept a boarding stable, and from January until May, 1877, he kept the mare in his stable at an agreed price which was paid. Then a new agreement was made by which the defendant was to take the mare around the country to race courses and driving parks and enter her for races, and he was to share in the money she won. According to his evidence, which we will assume to be true, although it is more favorable to him than that of Mr. Armitage, the arrangement was that he was to trot the mare and have half of her earnings and Mr. Armitage was to pay all the expenses. In pursuance of this arrangement he took the mare to Utica, Syracuse, Elmira, Springfield and other places and trotted her and won various sums of money. The lien claimed by the defendant was for expenses incurred by him in keeping and shoeing the mare during the existence of this arrangement while she was not at his stable, but was traveling through the country to attend the races. For such expenses the defendant can have no lien under the act of 1872. That provides that "it shall be lawful for all livery stable keepers and other persons keeping any horse or horses at livery or pasture, or boarding the same for hire under any agreement with the owner thereof, to detain such horse or horses until all charges under such agreement for the care, keep, pasture or board of such horses shall have been paid." This statute gives a lien to the person who by agreement keeps a horse at livery or pasture or boards a horse for hire. The defendant did not bring his case within the statute. He had the horse under a special agreement whereby she was to be used for the joint benefit of himself and Mr. Armitage. It was not an agreement for the board of the horse, and he did not, within the meaning of the statute, board her. She was boarded by other persons in their *544 stables, who might have acquired a lien under the statute, and he paid them. The charges he makes are not due him as a stable keeper, but if valid, are due him in consequence of the joint adventure made under the special agreement. For expenses thus incurred the statute gives him no lien.
We have carefully examined and considered the whole case, and find no error in any of the rulings upon the trial which call for a reversal of the judgment, which should therefore be affirmed, with costs.
All concur.
Judgment affirmed.