
    John Lees, Respondent, v. James W. Pitney, Appellant.
    (New York Common Pleas—General Term,
    March, 1894.)
    In an action of replevin to recover a horse and cart upon which defendant claimed to have a stable keeper’s lien, the justice found that, after setting off certain indebtedness, defendant had a lien for twenty-five dollars, and filed a decision in writing in favor of defendant that he retain possession of the horse to satisfy such lien. The return of the justice, however, states that he rendered judgment in favor of plaintiff. Held, that such a judgment was erroneous, and could not he permitted to stand.
    Appeal from judgment of the Second Judicial District Court.
    
      W. Arrowsmith, for appellant.
    
      J. Gallahmi, for respondent.
   Per Curiam.

This is an appeal by defendant from a judgment of the justice of the Second District Court in an action of replevin to recover a horse and cart which were held by the defendant, a stable keeper, under a claim of lien. The question litigated upon the trial was whether defendant had a lien. The justice found that he had to the amount of twenty-five dollars, after setting off against his charges various charges for cigars he had bought; and on January 19, 1893, signed and filed a “memorandum” as follows:

“The segars of August 4th, allowed at $70, and the six hundred segars admitted, at thirty dollars, making $100. The keep of the horse from August 1st to December 31st, at twenty-five dollars a month, $125. Therefore, judgment for defendant that he retain possession of one roan horse to satisfy a lien of twenty-five dollars. Dated N. Y., Jan. 19th, 1893.”

But the return upon appeal certifies that on the 19tli day of January, 1893, he rendered a judgment “ in favor of the plaintiff against the defendant as set forth in the judgment annexed to it.” No judgment is annexed except the memorandum above referred to. The return,' therefore, shows first, a judgment in favor of defendant, and ultimately one in favor of plaintiff, and will have to he reversed. There being a finding of a lien in favor of defendant, he should have had judgment.

The judgment should be reversed and new trial ordered, with costs to appellant to abide event.

Present: Daly, Ch. J., Bischoff and Pryor, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  