14 N.Y.S. 479 | The Superior Court of the City of New York and Buffalo | 1891
The defendant waived his lien when he transferred the stable to Heineman Bros., and delivered the plaintiff’s property to them, under á new arrangement, by which the expense of keeping it was charged to the plaintiff. Heineman Bros, became the plaintiff’s agents, their possession his possession; and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made at the time, by which the Heinemans were to hold the property for the benefit of the defendant, and for the preservation of his lien. See Railroad Co. v. Sage, 35 Hun, 95; Bigelow v. Heaton, 4 Denio, 496. No such arrangement was ever made. The answer does not plead a stable keeper’s lien given by the statute, (Law’s 1872, c. 498; Laws 1880, c. 145,) nor a common-law lien by agreement of the parties, but a sale by the plaintiff’s authority, a buying in by the defendant on plaintiff’s account, and a subsequent pledge until $342.16 was paid. The plaintiff denies that any such understanding was had or agreement made. The conflict was submitted to the jury, and they adopted the plaintiff’s theory, that no such contract or pledge was made. The defendant, shortly after the auction sale, removed the property to the private stable of one Hire, at No. 211 West Fifty-Eighth street, where it remained a few days under defendant’s control, and from thence it was removed by him to the farm of Sire, at Morris Farms, N. J., and from there to the farm of the defendant at New Brunswick. There being no lien, and no sale divesting the plaintiff’s title, the removal of the property out of the state without the consent of the plaintiff was an unwarranted assumption of control of his